here's a longer extension of the property k card

At the End of Property needed instead of a substantivist or a constructivist notion of property value, as Fabian Muniesa (2011) has argued, is a pragmatist approach. Native trait patents like Broccoli or Tomatoes offer an intriguing test case for this. While they seem to unite a range of very different stakeholders in their opposition, the respective reasons and motives for opposing (or endorsing) them diverge. That some of these stakeholders do not have patents does not mean that there is no value in these patents for them; while some who hold a vast patent portfolio see it as a liability rather than an asset. As we will see, it is not quite clear what is ‘in’ a patent (Bowker, 1992; de Laet, 2000), but it is not any easier to say what is outside of it (Biagioli, 2019). The controversy over native trait patents is both political and cultural: the various parties to the controversy have diverging, sometimes opposite ideas about the value of such patents. And yet, these values are made commensurate time and again by patents themselves. Rewarding innovation According to mainstream economic theory, patents are the prize that is meant to make people enter the innovation race (Machlup, 1958; Callon, 1994; Landes and Posner 2003, pp 294–333). ‘Useful ideas, like crops, are generally the product of hard work, which must be rewarded in order to be encouraged’, Posner (1986, p 54) writes. In this kind of economic justification, the prospect of getting a patent serves as an incentive for people to invest into R&D. Patents are needed because there is a discrepancy between the costs of developing a product and the price that people are willing to pay for it. While this is true for a lot of goods for which there is no market, the market does not have to fail here, the justification goes: the divergence between costs and market prices can be overcome by a combination of discounting and artificial, temporally limited monopolies. Successful inventors will be able to sell innovative and useful products exclusively for the duration of a patent, thereby evading competition and receiving higher profits which will help them recoup their initial investments. Without patent protection, however, competitors would undercut prices and rob innovators of their income: unlike the latter, they do not have to bear the costs of the expensive and risky initial appropriation of the idea by laborious experimenting and subsequent development (Machlup, 1958, pp 77f; Callon, 1994).

For companies, the potential value of such patents thus lies in the possibility to recoup expenses that would otherwise be lost to the market. Hubert Kempf, for example, could protect the fungal resistance traits he painstakingly accumulated in his nurseries and varieties from competitors: although it would not make breeding his wheat any cheaper for himself, a patent would keep others from selling the same resistances at a lower price. Once the The Values of Patents 89 patent expires, however, this ‘legal fence’ would be pulled down and the traits would become freely available to everyone else. These are the social benefits (cheap access to technology after the patent) meant to outweigh the social costs (higher prices before expiration). In the absence of patent, the argument goes, plant breeders would sooner or later stop investing in trait development (Landes and Posner, 2003, pp 312f) since their competitors would have free access to expensive traits. In Michael Kock’s words, such an arrangement would amount to ‘killing the hen to get to the egg’ (Kock and Gould, 2014, p 98). Until 2016, Kock was Head of IP for Syngenta, the Swiss agrochemical and biotech giant. He argues that patent can promote trait development where PVP cannot. “It’s about preventing market failure”, Kock says, “about saying, how do I create sufficient incentives; especially in a field where seed reuse and easy propagation would otherwise lead to a rapid loss of value?”1 Kock sees an under-investment in trait breeding, especially as public plant science is increasingly abandoning this field in favour of more fundamental research. In Kock’s account, the value of patents lies in their function as a backstop that prevents the well of investments and plant traits from drying up. He thinks of patents less as a fence to keep others out than as a sheet pile that channels money and incentives where they are needed. This is a position shared by his fellow patent lawyer Olaf Malek, who defended the Tomatoes patent at the EPO.2 It is rare to find a patent lawyer who does not believe in the value of patents – after all, it is their job to write patent applications and get them granted. And yet, Kock has found himself at the other side of the court room. He has opposed the Broccoli patent at the EPO, leading the opposition as his company’s representative throughout the process of appeals. What would lead someone who advocates for patents in plant breeding, of all people, to object them in a landmark case? “Anyone, from the top of their head, would’ve said, this must not be granted!”3 For Kock, the problem is that the Broccoli application lacks what would make it valuable after the patent’s expiration: “That’s why … we said this thing is not reproducible. No deposit, no markers, no nothing. It’s not inventive either, the EPO could have killed this with ordinary patent law.”4

In other words, Plant Bioscience Ltd., the patentee, was not upholding its end of the patent bargain: for there to be positive spillovers across the legal fence, there must be something in the patent application that allows others to reproduce the invention. After all, patent protection is also an incentive to share technology in time, rather than keep it secret forever. The Broccoli application did not contain anything of the sorts, which to Kock meant that the applicants were not meeting their part of the bargain for the protection given by the state. Kock may be a patent advocate, but at the end of the day, he is also a patent attorney. In Broccoli/Tomatoes II, legal values therefore came 90 At the End of Property before economic ones for him: the general benefits of native trait patents cannot be weighed against the flaws of a specific application. All around patents: frames, hedges, thickets Others have a less favourable view of patents on plant traits. Among them, ironically, are the ones Kock deems their first and foremost beneficiaries: commercial breeders. “Basically, this is why we always say that plant variety protection is the primary protection regime”, Alexandra Bönsch, then in-house council at the Federal Association of German Plant Breeders (BDP), summarizes the majority opinion in the European seed industry.5

“It’s not immediately compensated. … You’re not getting an additional incentive, but what we say is: okay, that’s the haves/no-haves discussion again. Everyone has [developed something] at some point … but they can protect it as a variety.” Plant breeders see Kock’s point about incentives and rewards, but their calculation is a different one. Yes, everyone can use a trait in a commercialized variety to include it in their own material. PVP will prevent flat-out plagiarizing of commodified seed, but it deliberately refrains from putting fences around traits. ‘What we say, nevertheless, is: okay, over the long run, that will even out in plant variety protection, because – yes – everyone can use your material, they can breed it into their pools; but you, as a breeder, will profit from the possibility of taking all these materials as well. And in the end we’ve always said that it’ll even out in the end this way. And that’s also the breeders’ stance as far as I’m concerned.’6 The calculation Bönsch proposes here does not follow the logic of fixed patent terms or returns on investments, at least not when it comes to traits. For finished varieties, the BDP believes in intellectual property and exclusivity. Upstream the value chain, however, the breeders’ lobby argues that such a logic would do more harm than good. Even if investments and benefits are unevenly distributed at this point in time, Bönsch points out, the differences will level over time. You might have a great trait now, but in ten years’ time, you might need a resistance trait or an enzyme inhibitor that can be found in your competitor’s varieties. Trait breeding, the BDP argues, is not about haves or no-haves; it’s about giving and taking. Indeed, European plant breeding has a long tradition of cooperation in competition (Brandl, 2017; Brandl and Glenna, 2017). Seed companies will behave like fierce competitors when it comes to marketing and defending their commercial seed, but they will readily join forces when it comes to fundamental research or developing new technology platforms. PVP mirrors this culture of competitive cooperation by protecting only The Values of Patents 91 the immediate product of variety development. In turn, it gives breeders mutual access to the fruits of their labour: plant varieties may not be copied, but they can be exploited by anyone for adding to and improving existing varieties as well as for including valuable traits in their germplasm. Some breeders, like Hubert Kempf, will even mutually share their varieties with their competitors before they officially receive market admission and variety protection.7

From the public point of view, the value of this arrangement lies in squaring market economics with the aim of rapid technology diffusion. Among others, this is a legacy of the post-war consensus in PVP, when politics had an interest in the overall improvement of all food crops (Bonneuil and Thomas, 2009, pp 231–267; Braun, 2021a). The faster beneficial traits travel through the commercial gene pool of a crop species, the better for society. But on a business level, the calculation is not one of private profits versus public benefits. Instead, Bönsch evokes an economics of reciprocity: the breeders’ privilege to use her competitors’ traits is mirrored by her obligation to share her own traits with them. It is not important when exactly she will repay them in kind: plant breeders are patient. What matters is that, over time, the difference between losing out and freeriding will disappear. “That’s what I meant with time spans of 10 years or more”, Carl-Stephan Schäfer, the BDP’s managing director explains. “Everyone knows that there will be haves at times and no-haves at others and that in the long run they are profiting from the system. And that’s why the system has been so successful.”8 Under PVP, trait breeding shows remarkable similarities to what anthropologists call ‘gift economies’ (Gregory, 1982; Mauss, 2002; Bourdieu, 2008).9

Gifts are only free on first sight: in the act of giving, the act of giving back is already implied (Bourdieu, 2008). This logic is not alien to us just because we live in a ‘market society’ (Miller, 2002). We feel the urge to reciprocate gifts, to not only be on the receiving side of birthday presents and buying drinks. At the same time, we hate to think about gifts in ‘calculating’ ways: when we turn ordinary commodities into gifts, we remove the price tag, and we make sure not to let the recipient know how much exactly they are worth to us (Braun, Brill and Dobeson, 2021; Dobeson, Brill and Braun, 2023). Likewise, the urge to repay a favour straight away or, even worse, in money, comes close to an insult (Bourdieu, 2008, pp 98–111). The removal of anything resembling a market logic, especially money as a mediator, but also the simultaneity of alienation and appropriation, is key in such a gift economy (Callon, 1998a). As soon as people are allowed to opt out of its long-term mechanisms and choose money instead of a counter-gift, this system would collapse. This is what the BDP is afraid would happen here: patents on traits would make breeders draw a ‘frame’ (Callon, 1998b) around their expenses and traits, seeking short-term compensation, rather than long-term reciprocation.

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At the End of Property

With drawing such a frame, the BDP’s fear is not only that breeders would revisit their calculation, moving from long-term benefiters to short-term profiteers. Even before such a change of mind, the introduction of trait patents would lead to a tragedy of the anti-commons: a legal landscape fragmented by fences that protect individual interests but make the collective endeavour of breeding impossible. Just like barbed wire put an end to the free movement of cattle herds in the western US (Netz, 2009, pp 1–55) and hedges cut through the customs and practices of British commoners (Blomley, 2007), patents would interrupt the free flow of traits through the gene pool. Where the PVP fence includes cattle guards that will permit the free passage of certain forms of plants and uses, the only opening in the patent fence is a toll booth. Without permission and the payment of license fees, breeders would immediately be cut off from any trait that is not already in their nurseries. This would give patent holders an unfair advantage over their competitors: they could ask for an unreasonably high compensation or refuse to give a license altogether. In the case of a so-called ‘must-have trait’, without which a variety would fail on the market, such a scenario could mean the end of a seed company.

No matter how critical most European seed companies may be of plant patents, several of them have begun to build patent portfolios themselves. Some are surprisingly prolific: out of 420 patent applications for conventionally bred plants at the EPO between 2000 and 2018, a full 92 (or 21.9 per cent) were filed by specialized vegetable breeders.10 While some of these applicants were subsidiaries of biotechnology multinationals like Monsanto, others were family-owned traditional breeding firms. Rijk Zwaan, for example, a Dutch vegetable breeder, accounts for 10 per cent or 42 of these applications. This number is only topped by Monsanto, which filed a total of 61 trait patent applications across all its subsidiaries. Other ‘traditional’ seed companies among the applicants include Enza Zaden (five applications) or Bejo (one application). Like Rijk Zwaan, these are Dutch vegetable seed producers. If you follow the BDP’s reasoning, they are the kinds of companies that should be most opposed to seed patenting, as it undermines their business model. So why do they nevertheless engage in patenting? A head of IP working for a vegetable breeder offers yet another way for valuing patents. ‘We do it. … But the reason for that is that we saw this development by technology, more and more patents. And, also, the consolidation; bigger and bigger companies were created. Because in the 1990s we had Syngenta, there was SaatUnion still [an] independent company, and they are not completely independent anymore. We had Royal Sluis, which later, through a lot of takeovers, became part of Monsanto, Seminis-Monsanto. We thought, okay, we do not need a patent The Values of Patents 93 protection for the [plants], because we have plant breeders’ right[s] for that. But we need the patents to protect ourselves. Because if all these big multinationals – and [our firm] is, compared to the multinationals, still small, but at that time it was really small. … For example … if a competitor would have a patent on a very important characteristic in lettuce, and we couldn’t get a license, then it would mean that we miss half of our turnover. And that is the end of the company.’11 Like the BDP, the company disapproves of patents in conventional plant breeding. The threat of being locked out from key traits by seed multinationals has however prompted them to file for patent protection themselves. Like the economic mainstream theory of patents, they think of patents as hedge or fence that will protect them from competitors. The key difference, however, is what is inside the fence: where for Landes and Posner (2003), for example, a fence encloses and protects a valuable object of property, the fence in question here is meant to protect the company itself and ensure its survival. The patent portfolio serves as a bulwark against hostile business practices, as an arsenal that would allow the company to retaliate in the event of an attempt to lock it out.

This firm has not developed an active business model around its patents. In pure cash flow terms, it thinks of them as liability. Its patented traits are liberally licensed to competitors upon request but royalties are only meant to cover the additional expenses the company incurs by filing and renewing patents. Most of the patents fail to do so, yet the executives have decided to hold on to them for strategic reasons. In itself, this use of patents is not unusual. Next to active exploitation in the spirit of economic patent theory (Machlup, 1958), defensive patenting is a widespread practice in many industries (Lemley, 2000; Moore, 2005). Even in the plant breeding sector, it is not unusual: Rijk Zwaan, for example, openly pursues a defensive patenting strategy (Hendriks, 2017, pp 105f). Such uses of patents however complicate the narrative that patents will introduce a more economic approach to trait development in plant breeding, as argued by Michael Kock, Olaf Malek and others.12 If the same patent can be used in two very different ways – enclosing your traits or walling your company – under two opposing patent philosophies – for or against native trait patents – what does that mean for the effect native trait patents would have on the industry ‘as a whole’? The question becomes even more difficult to answer when patents are not only used as fences to keep out others but to get a foot into the door of their operations. A patent lawyer working for another company (somewhat bitterly) remarks: “Of course we have patents. If we didn’t, Monsanto wouldn’t even talk to us.”13 Without a patent portfolio of their own, some breeders had to learn that Monsanto would not even invite them to discuss 94

At the End of Property licensing terms for a patent. In another case, multinationals would grant a license to a firm, but without disclosing the conditions upfront. Later, it turned out, the license fee amounted to 80 per cent of the expected turnover for a plant variety.14 There is a widespread feeling among European plant breeders – based on experiences like these – that they will only be taken seriously by biochemical companies if they are able to present an entry ticket in the form of at least one, preferably a broad portfolio of patents. This is likely owed to a corporate culture that is rooted in a ‘chemical’ (Brandl, 2017, p 198) or, as Carl-Stephan Schäfer puts it, ‘American’ tradition:15 owing to the materialities of the agrochemical sector and the US legal context from which many of them have emerged, plant science multinationals exclusively think about innovations, products and value in terms of patents. While some of the larger European seed producers are able to get access to this patent club, not every company can afford the costs of patent application and management. The cost of applying for patent protection in all 27 signatory countries of the European Patent Convention is estimated at €36,000 (Bently and Sherman, 2014, p 396), not including personnel costs for in-house counsel or enlisting a specialized law firm. The challenge becomes even greater for breeders when they need more than one patented trait for their varieties: obtaining a license at an exorbitant price might still be feasible as long as only one patent is involved. But paying two times 80 per cent of their sales revenues to two separate patent holders is outright impossible. And yet, the essence of plant breeding is to cross plants and remix traits. The more patented traits accumulate in one plant, the more expensive it becomes to breed. Over time, the hedges around each of these traits would grow into an impenetrable thicket of patent claims (Frison and van Zimmeren, 2021), one that only large firms with an armada of patent lawyers would be able to penetrate. Whether they can afford entering the patent game or not, most plant breeders agree that there is only negative value in patents. Those who do not have the means to patent their traits fear a future where patent law will make it impossible for them to add value to their plants the way they are used to: by freely taking from and giving to the commercial pool of plant germplasm. Rather than protecting their labour and expenses from others, patents cut off the relations and practices that keep the seed industry alive. The few dedicated plant breeding companies that have the resources to compete in the patent race do so begrudgingly. If patents have a value for them, it is only because they feel threatened by the business practices and patent strategies of biotechnology and agrochemical multinationals whose mentality and values they do not share. In a world without patents, they would not need patents in the first place, these breeders argue. Both large and small plant breeders share the feeling that patents are forced upon them and their industry: they never asked for patents, nor has anyone ever asked The Values of Patents 95 them if they need them. Now, after Broccoli/Tomatoes II, the economic logic will squeeze many of them out of the market – or at least, that’s what they fear. Perhaps, however, this is not what native trait patents are about after all.

Rent machines

It is not easy to get hold of Christoph Then. “I get so many mails”, he says, “it’s impossible for me to answer them all”, but he eventually agrees to an interview.16 Then is indeed a busy person. He used to be head of Greenpeace’s genetic engineering and agriculture division, a function in which he opposed the Harvard University’s OncoMouse patent (US 19840623774) in Europe as well as the infamous ‘Edinburgh patent’ (EP 0695351) which claimed a method for propagating human stem cells. In 1992, Then founded Kein Patent auf Leben! (No patents on life!), a network to coordinate and bundle various NGOs’ and activist group’s efforts against patents on life forms. Their activities do not only include legal action, public protest and lobbying against the patentability of biological materials and processes. The NGO also assists developing countries at defending themselves against biopiracy by large multinational life science companies (Parthasarathy 2017, p 137f). In response to Broccoli/Tomatoes II, several European NGOs and activist groups formed the coalition No Patents on Seeds! (NPS) headed by Then. Since 2009, he has also been head of Testbiotech, an association which seeks to provide independent technology impact assessment for biotechnology (Parthasarathy 2017, p 181f). In these capacities, he frequently appears in the media to give his opinion on the current outlook of the seed sector. Then’s explanation for the patent activities in conventional plant breeding, especially vegetables, is a shift in business models, with plant science companies increasingly taking an interest in the downstream stages of the food value chain: ‘I guess that in vegetables the idea is to also patent the harvest. And that you don’t necessarily sell seed anymore but that you get your revenues from the food sector. And that’s the way that Monsanto’s been leading with this broccoli and Syngenta has something like that in melons, too. And of course that is way more lucrative, to control the whole value chain and then only in the end you try to get turnover. More lucrative than, quote unquote, “just selling seed”.’17

Then’s theory of patent value follows that of Kloppenburg (2004): in plant breeding, patents are tools for extracting surplus. Their value lies in securing additional revenue across the value chain beyond the point of sale. If you do not just own the seed and the plant, but also have claims to the processed products, you can make a profit every time seed and grain change hands. 96 At the End of Property This business model is reminiscent of those for other ‘novel’ property objects, such as Myriad Genetic’s patented breast cancer genes (Nicol et al, 2018) or Keurig’s coffee machines (Perzanowski and Schultz, 2018, pp 149f). The most obvious parallel, however, is Monsanto’s transgenic seed, which is sold to farmers (and only to be used) alongside its own brand of glyphosate and other chemicals. Under the agreements farmers sign, Monsanto may even retain ownership in the harvest, demoting farmers to mere service providers (Müller, 2006; Schubert, Böschen and Gill, 2011; Braun and Gill, 2018). Where PVP carefully refrained from creating such relations of dependence and extraction between breeders and farmers (Chapter 3), patents have allowed to engineer them. The resulting object of value differs markedly from a commodity that earns its producer profits on the market. Instead, revenue is produced here by circumventing or supplanting the market with monopolies and lasting streams of income. Kean Birch and Fabian Muniesa (2020) call this process ‘assetization’, distinguishing it from commodification, which aims at producing market goods. Over time, commodities suffer from competition and decreasing profits, whereas assets promise lasting rents (Birch, 2020). Although patents do not automatically confer the possibility to ‘ask for seconds’ from consumers, they can indeed be used that way (Machlup, 1958, p 12; Landes and Posner, 2003, p 7). This happens when the legal fence used to keep out a patentee’s competitors is tilted ‘vertically’, extending it downstream the value chain and trapping processors and consumers in a web of monetary obligations (Tellmann, 2022). Hence why some have also dubbed the relations resulting from this new entanglement of owners and owned ‘neo-feudalism’, as the owner’s power over property extends to the people who rely on it (Morozov, 2022; see also Müller, 2006; Schubert, Böschen and Gill, 2011). The ‘positive’ value of the patent fence here no longer just lies in excluding others. Instead, it stems from including their valuation practices in a company’s balance sheet. On the other side of the equation, this value is mirrored by the premium processers and consumers pay for a product without alternatives – downstream the value chain, one could argue, everyone else has to be worse off for this business model to work. Indeed, many of the patent applications in the field of conventionally bred plants, among them the Broccoli patent, make claims to processed products, on top of traits, genes and whole plants. The so-called Carlsberg patent (EP 2384110), filed by the brewery conglomerates Carlsberg and Heineken in 2011, granted by the EPO in 2016, and opposed by Then and NPS in 2017, is another example. It claims a barley that has lost two enzymes affecting taste as well as products – especially beverages – produced from the plants. The fact that two food producers (rather than specialized barley breeders) have applied for such a patent aligns well with the scenario suggested by Then. Should barley of that type become a standard for beer, the two companies would not only hold a monopoly over the barley, but also over beer of a The Values of Patents 97 certain taste. Such considerations explain why Unilever felt compelled to appeal the Tomatoes patent – not because that patent was in itself very valuable, but because it set a precedent that might affect the whole industrial food chain from farmers to supermarkets. What is ‘in’ a patent, here, depends on who is in a patent: if you can turn it into an enclosure around the whole value chain, the value of the patent is equal to the extra paid by those who depend on the patented good. As Then points out, there is considerably more money to make in the food than in the seed business: the combined sales of the top 10 companies in the seed industry totalled at US$28 billion in 2012 but were dwarfed by the US$521 billion sales volume of the top 10 food processors (Bonny, 2014, p 528). This is not surprising, given that value accumulates along value chains. Nevertheless, it shows that plant science companies’ sales volumes are comparatively small and that a venture into the industries downstream could promise higher revenues and turnover. For that to happen, a patent needs to cast a web wide enough to cover all the industrial applications of a trait. The more valuable a trait after the harvest, the more likely this business model is to work – provided it can circumvent the principle of exhaustion. The key to this is replacing market transactions and sales with contracts and licenses, which prevent the property bundle from changing hands for good. Actors further down the value chain only retain a limited and temporary use right in the patented plants, forcing them to pay a patent premium for as long as the patent term lasts.

Speculative value Then’s theory is as compelling as the breeders’ gloomy scenario of rapid market concentration. Still both accounts might misinterpret the value native trait patents have in the eyes of their proponents. Perhaps Michael Kock, too, is wrong about patents and their value to the seed business. Could it be that we too readily believe that they make a difference for the plant breeding industry? Sometimes a few beers help to see things with more sober eyes. After a plant breeders’ meeting somewhere in a Bavarian beer garden, one of the participants lays down his alternative interpretation to his colleagues. As a seasoned plant breeder whose employer was acquired by Syngenta a few years ago, he does not buy the story of ruthless competition and profit maximizing: ‘You know, we always act as if they just wanted to push us small ones out of the business, to buy us all up. You know what? They don’t give a damn about us. They don’t even know we exist. I’ll tell you how it works. Someone in Basel has an idea for a project: “We’re going to make hybrid wheat now!” So he walks up to his superior and 98 At the End of Property says: “Boss, let’s make hybrid wheat. With hybrid wheat, we’ll … get 30 per cent of the global wheat market, which amounts to €20 billion. All I need is €20 million and 50 people.” And of course his boss has no clue whatsoever of plant breeding but he really likes the idea. So he pitches it to the board of directors, who have even less a clue of wheat breeding. But all they hear is 30 per cent of the market for 20 million. So they approve it. Then the firm issues a press release: “Syngenta going into hybrid wheat, soon to hold a third of the market!” The next thing that happens is that stocks go up because of that release. So Syngenta goes to its shareholders and says “Look, you just made €25 profit on every single share you have thanks to our great business performance. Out of those €25, could you maybe give us 5 and keep the other 20 so that we can reinvest it to make you even more money?” And then the whole thing starts all over again.’18 Since the executives all hold company shares and stock options themselves, he goes on, this business model offers them profit along with the major shareholders. The breeding programme might be sold after five or ten years when it turns out that the whole story was unrealistic from the very beginning or Syngenta has lost interest. But by then everyone has already forgotten about it and the stock market’s attention has already moved on. “And it doesn’t really matter”, the breeder concludes, “because everyone has profited.”19 Another breeder at the same table nods his head and agrees: “I can confirm that. I’ve worked for one of those companies and that’s exactly how it works.”20

This is a whole new take on the plant patent story: what if the surge of patents on pepper, lettuce, tomato or broccoli is just another business stunt pulled to collect money at the stock markets? Suddenly, all the loose ends can be tied up – the lack of market potential for most of trait patents, the rush of multinationals into vegetables and wheat, the upcoming mergers in the seed sector, even the anti-patent campaigns of breeders and activists. After all, any publicity is good publicity in such a scheme: the more the economic value of patents and their potential to radically reshape the seed business is exaggerated by their opponents, the more credible the story becomes (Vinsel, 2021). Here, credit and credibility, both rooted in the common etymology of credo, Latin for belief, rejoin (Kang, 2015). The parallels between this breeder’s account and Kean Birch’s (2017) analysis of value in the bioeconomy is difficult to overlook. Observing that biotech companies’ market capitalization (that is, their combined stock value) is in the billions, Birch points out that most of them never come up with a product for sale. But that does not matter as long as investors and stock markets confuse patents with products, patenting with innovating, pompous press releases with profitable projects. Suddenly, patents are counted and the The Values of Patents 99 quantity of applications and grants are taken as indicators for the quality of a company’s R&D. Start-ups dress themselves up for acquisition (Graham et al, 2009, pp 1296–1308), listed companies for the stock market. Shareholders and investors, including the executives of plant science companies, thus take the value of patents as given, whether they have an impact on the market or not. Patents do become market objects in this over-financialized business scheme, but, as Hyo Yoon Kang (2020) remarks, they are entirely selfreferential. The less people know about what is ‘in’ patents, the more valuable they become. Kang criticizes this reification of patents, which confuses the fence with what is enclosed by it (Kang, 2023). But because patents are highly technical, requiring legal, business and scientific expertise to properly understand them, few people can see through and properly evaluate them. The beer garden theory of value implies that to some extent, this is a deliberate scheme. It relies on an unequal distribution of expertise and knowledge across the ranks of a firm and across the stock market. There are some stake- and shareholders who are treated preferentially – those who already have stocks and responsibility in a company, and those who are lured in to invest by hype and overblown expectations. Philipp Mirowski (2012) calls this logic a ‘Ponzi scheme’. It sells promises to a gullible audience without ever delivering, instead relying on a steady influx of fresh money that will be redistributed to those who are already part. This business scheme will work as long as there is still fresh money or, in Kang’s (2015) words, credit out there. Once liquidity dries up, however, the music stops and the pyramid collapses (Mirowski, 2012, p 287), leaving the last ones to invest their money in it to lose out. By that measure, the Syngenta shareholders have made the right call at the right time when they sold their stocks to ChemChina.21 Monsanto, too, managed to woo Bayer into acquiring the company for a stellar US$63 billion in 2016 (Elmore, 2021, 267–288).

The ‘emptying out’ of patents is not limited to the stock markets or public imagination, however, and it is not necessarily a conscious strategy. Even within companies, patents are increasingly used as management instruments for legitimizing or ‘authorizing’ (Gill et al, 2012) the work of departments: an R&D department can signal its value to the company by an increasing output of patentable innovations, which the IP department will turn into patent applications, in turn justifying the expenses of both in the eyes of controlling and human resources (Long, 2002, pp 651–653; Böschen et al, 2013, p 194). Here, too, quantitative patent metrics are being mistaken for indicators of quality because the actual content of patents is not transparent to outsiders. Perhaps this is inevitable when a company exceeds a certain size, as the various departments and divisions of the organization no longer know or understand what is going on elsewhere. Patents are a means of communication to bridge these widening gaps: to an extent, they 100 At the End of Property can be understood and processed by research divisions, legal departments, accounting and controlling alike. But the more patents travel through the firm, the less defined they will become, as fewer and fewer people are able to grasp them as more-thanlegal, more-than-economic or more-than-scientific objects (Star, 1989). As Christoph Then suggests, even the EPO is complicit in the inflation of patents, as it receives (and relies on) application fees but has little incentive to deny its ‘customers’ a grant.22 There has also been pressure from the director’s office to speed up the processing of applications to reduce the backlog (Dunlop, 2017), a policy that likely affects the scrutiny with which examiners read a patent application. One way or another, patents show a tendency of being ‘hollowed out’, of becoming empty signifiers rather than working boundary objects (Star and Griesemer, 1989) that meaningfully connect and equally benefit the realms of science, law and business. Whether they are used as value signals to shareholders and markets or as proof of productivity within the company, the bottom line here is that there is nothing of value in patents after all. Like a dense hedge that closes off an alleged estate from outside view, patents hide their emptiness behind technical language and the air or innovativeness. Their real value lies in making people believe that they enclose and protect anything in the first place. Filling the void

Is this true? Are plant patents really just a Ponzi scheme? Is the EPO complicit in the inflation of patents? Do IP and R&D departments unconsciously collaborate to pump out patents? Michael Kock’s answer is straightforward: it’s ‘nonsense’. But do these departments not need to justify their jobs? ‘Yes, but not with patents, of all things!’ He goes on to explain: ‘My KPIs [key performance indicators] were cost management. So basically, we made sure that the patents we have are actually in active use. Either in relation to products or not. My KPI was efficiencydriven. Reducing costs, keeping only what is actually relevant, and that’s my KPI. So in number of patents – yes, I know, [other firms in the industry have] such a KPI, “We need to make at least 1000 patents a year,” but that’s complete bullshit. And no investor will buy that anymore either. So it’s quality, not quantity. If I can protect my product portfolio with a smaller number of patents, then that’s a considerable efficiency factor. The patent itself does not have any added value. The surplus is only what’s protected by it. And if it doesn’t protect, if I enclose a piece of desert, then I’m wasting money! So [that’s] a very outdated vision; it’s done way more pragmatically these days.’23 The Values of Patents

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This, of course, is only half a rebuttal: Kock acknowledges that there are companies that simply count their patents, just like that there have been investors who have fallen for such a simulation of value. Yet he also insists that under his reign, and in the agri-biotech industry more general, this kind of patent valuation has become a thing of the past. Kock does not believe in patents as assets that directly translate into financial value at the stock market. Patents – and here he agrees with those who criticize their use as empty signifiers – need to be grounded in real value, that is, products. A patent which, after a given time, does not translate into a product and a market for it, must be considered worthless, Kock says: ‘At the point of ten years after application, there mustn’t be any patent that does not make any money, that’s out of the question. Development takes up to ten years, but then there has to be decision: top or flop? … And then we killed them, as simple as that. We had a high degree of efficiency. It’s either an active product or an active project. Or it’s gone.’24 A patent, Kock points out, is worth its equivalent in sales. Kock’s script for evaluating patents is straightforward: how much money does the company make from selling a patent-protected product, and does this sum outweigh the costs of application and renewal? If so, the patent is of value; keep it. If not, it is a liability; let go of it. To this end, the black box of the patent needs to be opened and translated into data about sales and revenues that allow a company to understand its intellectual property as first and foremost an aggregate of market prices. For Kock, this is the only way to really grasp the value of a patent. Any evaluation from the outside, like the one offered by specialized consulting firms, “is bullshit”. Patents’ value cannot be estimated in isolation from the products they protect; even widely used indicators like citation numbers are useless for this reason.25 After Kock took office as Syngenta’s head of IP in late 2010, the company’s patent applications and grants indeed show a marked decline until his departure in 2016.26 This may or may not be proof of successful management – in any case, it is clearly at odds with a business strategy of printing patents.

Kock’s philosophy mirrors a trend toward professionalization in IP management. Ernst (2017) evokes a contrast between old and new regimes of IP management, the former being characterized by a singular focus on patent numbers, rather technical protocols for filing and managing patents, and a weak integration in the company’s overall strategy. In such a regime, IP departments are often part of a much bigger legal department and do not directly answer to the CEO. In contrast, ‘modern’ IP departments act independently of the legal departments, and are led by a head of IP (like 102 At the End of Property Kock) who directly answers to the CEO. In this second regime, the focus is on quality, that is, value of patents. According to Ernst, their decision to patent certain innovations largely depends on how important they are in the context of the firm strategy. Not everything that can be patented can also be sold. “It was less than a quarter of the things that we actually managed to bring to the market”, Kock says. “That’s why they changed the strategy and said it’s better to file late once you know it’s going to be a success on the market. Doesn’t make sense otherwise, it’s just a waste of money.” Kock’s contrast foil are the plant breeders that bulk up extensive patent portfolios. Rijk Zwaan, Kock suspects, is likely the only one to have made a real profit from a native trait patent – one on lettuce resistant against Nasinovia lice, filed in the late 1990s and expired in 2017 (WO 1997046080A1).

Cutting back the thicket This resistance proved indispensable for breeding healthy lettuce, an experience that likely made vegetable breeders realize how precarious their own situation was. Still, Kock stresses, it remains the exception. Together with Floris ten Have, Kock has compiled an analysis of the markets for traits and varieties in Europe (Kock and ten Have, 2016). They conclude that the Nasinovia patent is the only one to have had a major impact on the industry, ending up in 467 different varieties of lettuce across Europe, 255 of which belong to competitors of Rijk Zwaan (Kock and ten Have, 2016, p 503). No other native trait patent comes close to this significance: even the hybrid Ogu-Inra rapeseed developed by the French research institute INRA to revolutionize French oilseed production (Bonneuil and Thomas, 2009, pp 307–310) only accounts for 50 plant varieties affected by patent protection (Kock and ten Have, 2016, pp 503). Kock takes this as proof of the limited negative impact plant patents have had on the European plant breeding industry, although it may well prove the opposite: in someone else’s hands, a blockbuster patent like Rijk Zwaan’s could have obliterated the whole lettuce sector. Kock acknowledges breeders’ fears and the destructive potential of the power to exclude wielded by patent holders. Although he is convinced of the value of trait breeding and the positive contribution of patents to the industry, he believes that the right to exclude is unnecessary. He dreams of a patent law reform, which would cut back the bundle of rights that comes with plant patents. If the seed industry were to throw its combined weight behind an effort to revise the EU Biotechnology Directive for plants, he is sure that access to patented traits could be facilitated. The right to exclude could be dropped for patents related to plant breeding and replaced with a remuneration mechanism for the use of patented traits.27 The rest of the seed The Values of Patents 103 sector, however, is reluctant. Any attempt to renegotiate the Biotechnology Directive, the BDP’s Alexandra Bönsch fears, would be met with opposition from much bigger and more powerful industries.28 For the time being, Kock has taken matters into his own hands. While at Syngenta, he launched Traitability, a catalogue of the company’s native traits, which offers them at standard licensing conditions to third parties.

Kock’s most ambitious project, however, is ILP Vegetable, a so-called clearinghouse for patents on native traits, which is meant to fix the shortcomings of plant patents with contract law (Van Overwalle, 2017b). Founded by Syngenta and ten other seed producers in 2014, the ILP members submit to self-imposed rules meant to maximize the economic benefits, which together turn patent law’s right to exclude into a carefully assembled script of financial inclusion (Van Overwalle, 2017a). The rules force members to waive almost all of the rights they have been granted through their patents. Within the framework of the ILP, any member can freely breed, do research with and even commercialize other members’ traits – provided it pays an appropriate license fee and makes the resulting traits available under the same conditions. The platform’s rules only allow royalties to be based on net sales of the commercialized trait, thus defining patent value strictly in terms of the market product. If patentee and licensee fail to agree on a price, they trigger a so-called ‘baseball arbitration’ mechanism (Monhait, 2013): both parties have to submit bids, after which they get a final chance to agree on a price. If they still insist on their bids, they handed over to a committee, which has to pick the one that is deemed the fairest. The committee cannot intervene by proposing or setting an intermediary price, it has to pick one option, leaving the losing side to pay for the costs of arbitrage (Kock and ten Have, 2016, p 506; Van Overwalle, 2017b, pp 91f). This is meant as a strong incentive for members not to use price setting as a discriminatory instrument while ensuring that patent holders are adequately rewarded. In Kock’s words, the ILP is about “free access, but not access for free”.29 It is tempting to dismiss the ILP as a corporate PR bluff for selling the idea of plant patents to a sceptical public (Girard, 2015, p 14). Christoph Then, for example, is not convinced by such projects: to him, they are an attempt to calm legislators and critics into believing that regulation and legislation are not needed to solve the patent problem.30 At the BDP, Carl-Stephan Schäfer is doubtful that the platform can bring about a change in patent culture: “It all sounds very fancy”, he agrees, “I don’t want to badmouth it. But someone who has patented already has a strategy in his head; he might others not to have a share of it. I know, he has made an investment, too, I’m aware of that. But by patenting a trait he can restrict the use of others. That is the main difference between PVP and patents”. With this calculation at the heart of patenting, Schäfer is doubtful the ILP will work on a long term for all species: “I don’t know if such a person 104 At the End of Property can be convinced to participate in such a platform.” For the managing director of the German breeders’ association, a private solution like the ILP is not the preferable one, because it cannot ensure that everyone will play along: “[Equal rules on the market] are, in our view, best achieved by laws, by state action. That’s a bit boring, but in the end, it’s like that.”31 In a legal commentary that sums up both Then’s and Schäfer’s reservations, Fabien Girard remarks that ‘it is still unclear why, rather than opposing the patentability of the product of an essentially biological process, the president of the EPO, along with the vegetable breeding companies involved in the ILP, keep supporting pro-patent options’ (Girard, 2015, p 14). Kock’s reply is that entrusting the problem to politics alone would be naïve. “I think you always need a combination of industry or stakeholder initiative and support by the legislator. I don’t think we can achieve a global change in legislation”, he explains. It is not an either-or but rather “working with carrot and stick, if you will”.32 In the current situation, the good-willed among the companies in the seed industry need to make the best of the legal options available to lead the way (Kock and ten Have, 2016, pp 504f).

Conclusion Perhaps, after all, the question of value of patents is not about what subjects attach to them, nor about the objects that are enclosed in and by them. Looking for them in either place, therefore, could mislead us. It is likely that no one at the Volcani Center, the very organization that produced the shrivelling tomatoes, saw an awful lot of value in them, let alone imagined that they would end up causing all this commotion. After Arthur Schaffer, a breeder at the institute, successfully obtained them from extensive crossbreeding between wild and cultivated varieties in the 1990s, the centre filed a global patent application at the World Intellectual Property Office, which then passed it on to patent offices around the world. Nowhere did the patent end up being controversial – except for Europe (Braun, 2023).

The Volcani Center regularly files for patent protection for its plants. Not because it is out for profits, not because it needs to defend itself, not because it needs to prove anything to investors – like many similar research facilities around the world, it is simply obliged to. Established by Jewish settlers in 1920s Palestine, it was taken over by the newly founded State of Israel and named after its late director, Yitzhak Volcani, one of the pioneers of Zionist agriculture. In the first decades of its existence, the Volcani Center was there to support Israeli agriculture by developing new agricultural technology, educating farmers and introducing and adapting foreign plants to the climate of the region. Like elsewhere, however, the importance of the Israeli agrarian sector faded with its progress; food safety became less of a concern as Western countries grew more prosperous. Along with many The Values of Patents 105 other agricultural research centres around the world, the Volcani Center had to look for new income and purposes as the advancement of domestic agriculture alone no longer justified lavish public funding.

Since the 1980s, the centre has greatly expanded its patenting activities at home and elsewhere, licensing many of its research outputs to third parties around the world. There is no further business model behind this: the Volcani Center cannot turn its patents into commercial products itself – including the Tomatoes patent. The applicant of the Broccoli patent, PBL Technology, comes from a similar background: it is a joint venture of public and semipublic plant science facilities in the UK tasked with patenting and managing patents for them. With the reforms of British higher education and public research since the 1980s, mirrored and followed by neoliberal policy changes in other countries, plant scientists are under pressure to also legitimize their activities financially (Stengel et al, 2009; Galushko and Gray, 2013; Braun, 2023). The obligation to patent is written into funding agreements today; to make the most public value out of their research, scientists have to patent it (Slaughter and Rhoades, 2004; Mirowski, 2011). The Volcani Center and many other research institutes around the world comply with this imperative. For most public researchers today, patents are not a motivation but an obligation: they operate in an ecosystem in which patents are not up for debate anymore (Biagioli, 2019). At the very end of his 1958 report for the judicial committee of the US Congress, the economist Fritz Machlup draws an inconclusive conclusion about the value of a patent system:

If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it. (Machlup, 1958, p 80) Machlup’s report is a rather sobering commentary on the various attempts to justify, define or calculate the value patents have for companies and the economy overall. None of them, Machlup argues, is convincing or without contradictions – they cannot be answered independently of the patent machinery that is already in place, as Mario Biagioli (2019) remarks 60 years later. The value of patents is not simply ‘inside’ our ‘outside’ patents, in the protected traits or in the heads of company executives and economists. Where it resides and what it amounts to rather depends on how it is situated (de Laet, 2000): the same patent can be of very different value for a multinational biotechnology company and a family-owned plant breeding firm. Seed patents lend themselves to many different uses and interpretations. Depending on the context they are embedded in, they can be legal fences, enclosures, 106 At the End of Property links between science and industry, deterrence, insurance, entry tickets, assets, commodities, signals, empty signifiers and many things more (Torrisi et al, 2016). The same goes for their value: it can be defined in scientific (novelty, disclosure, enabling), legal (enforceability, compatibility, validity), economic (incentive, technological progress) or business (productivity, performance, innovation) terms (Biagioli, 2019).

The problem here is that these different values and uses of patents are entangled. The defensive patenting by vegetable breeders only makes sense in a business environment in which patents can be (and have been) used aggressively. In theory, the economic value of a patent is tied to its scientific value, yet in many contexts, patents can only become valuable if they are abstracted from their scientific and technological contents. And even if everyone in the seed industry agreed to change the law and logics of patents, this cannot be done without taking into account other industries, where patents may do and mean different things altogether. The various spheres in which patents have meaning and value are not separate but interact with each other – crucially, through patents.

Over the course of their existence, the scripts bundled in patents have changed and multiplied (Machlup, 1958; Pottage and Sherman, 2010). Although from time to time the bundle is cut back and select scripts are modified, reduced or dropped (Sivaraman, 2013; Parthasarathy, 2017, pp 117–154), the short history of European trait patents suggests that the uses of patents will become more, rather than less, in the future. The trouble with being pragmatic about patents is that they are used to address so many different issues: companies, industries and economies rely on patents in various ways, hence why Machlup cautioned against their premature abolition. Even if the individual or aggregate effects of their various uses are not necessarily intended or beneficial, it is very difficult to make patents do only one thing.

Perhaps this is a lesson we can draw for property in general: if the value of property could easily be expressed in numbers or dollars, if the private profits of the owners could easily be weighed against the social benefits for the rest of society (Biagioli, 2019), the economy of property would be neither ‘political’ nor ‘cultural’. Property would become an amorphous mass of ‘wealth’ that could be moved from one bank account to another; the swift calculation of need, merit or demand would save us from political debates over what and whom property is for. Alas, it is not that simple. People are attached to their property for more than financial reasons, and there are many different ways of making economic use of one’s possessions. To say that property is cultural, nevertheless, does not mean that it is inconsequential. Far from it: reining in or encouraging certain uses also has an effect on all the others. Speak about raising inheritance tax and people will hear that you are going to rob them of their grandmother’s home; The Values of Patents 107 suggest to sell a company to a foreign investor and a concerned public will talk of sell-out of the whole country. One reason we cannot let go of property, patents or other, is that we are attached to it in so many ways. If the multiplicity of these attachments is what makes property ‘cultural’, it is the lack of a shared method for weighing them against each other that makes property truly ‘political’.