When she was under anesthesia, I made a half-inch incision above her belly button. I slipped my gloved finger inside to feel for space to insert the fiberoptic scope. But a hard loop of tumor-caked bowel blocked entry. I wasn’t even going to be able to put in a camera.
I had the resident take the knife and extend the incision upward until it was large enough to see in directly and get a hand inside. There were too many tumors to do anything to help her eat again, and now we were risking creating holes we’d never be able to repair. Leakage inside the abdomen would be a calamity. So we stopped.
No risky chances. We shifted focus and put in two long plastic drainage tubes. One we inserted directly into her stomach to empty the contents backed up there; the other we laid in the open abdominal cavity to empty the fluid outside her gut. Then we closed up, and we were done.
I told her family we hadn’t been able to help her eat again, and when Douglass woke up, I told her too. Her daughter wept. Her husband thanked us for trying. Douglass tried to put a brave face on it. “I was never obsessed with food anyway,” she said.
The tubes relieved her nausea and abdominal pain greatly—“90 percent,” she said. The nurses taught her how to open the gastric tube into a bag when she felt sick and the abdominal tube when her belly felt too tight. We told her she could drink whatever she wanted and even eat soft food for the taste. Three days after surgery, she went home with hospice care to look after her.
Before she left, her oncologist and oncology nurse practitioner saw her. Douglass asked them how long they thought she had. “They both filled up with tears,” she told me. “It was kind of my answer.”
A few days later she and her family allowed me to stop by her home after work. She answered the door, wearing a robe because of the tubes, for which she apologized. We sat in her living room, and I asked how she was doing.
Okay, she said. “I think I have a measure that I’m slip, slip, slipping,” but she had been seeing old friends and relatives all day, and she loved it. She was taking just Tylenol for pain. Narcotics made her drowsy and weak, and that interfered with seeing people.
She said she didn’t like all the contraptions sticking out of her. But the first time she found that just opening a tube could take away her nausea, she said, “I looked at the tube and said, ‘Thank you for being there.’”
Mostly we talked about good memories. She was at peace with God, she said. I left feeling that, at least this once, we had done it right. Douglass’s story was not ending the way she ever envisioned, but it was nonetheless ending with her being able to make the choices that meant the most to her.
Two weeks later, her daughter Susan sent me a note. “Mom died on Friday morning. She drifted quietly to sleep and took her last breath. It was very peaceful. My dad was alone by her side with the rest of us in the living room. This was such a perfect ending and in keeping with the relationship they shared.”
I am leery of suggesting that endings are controllable. No one ever really has control; physics and biology and accident ultimately have their way in our lives. But as Jewel Douglass taught me, we are not helpless either—and courage is the strength to recognize both of those realities. We have room to act and shape our stories—although as we get older, we do so within narrower and narrower confines.
That makes a few conclusions clear: that our most cruel failure in how we treat the sick and the aged is the failure to recognize that they have priorities beyond merely being safe and living longer; that the chance to shape one’s story is essential to sustaining meaning in life; and that we have the opportunity to refashion our institutions, culture, and conversations to transform the possibilities for the last chapters of all of our lives.
LISA M. HAMILTON
Linux for Lettuce
FROM Virginia Quarterly Review
FROM A DISTANCE Jim Myers looks like an ordinary farmer. Most autumn mornings he stands thigh-deep in a field of wet broccoli, beheading each plant with a single sure swipe of his harvest knife. But under his waders are office clothes, and on his wrist is an oversized digital watch with a push-button calculator on its face. As his hand cuts, his eyes record data: stalk length and floret shape, the purple hue of perfect heads and the silver specks that foretell rot. At day’s end his broccoli goes to the food bank or the compost bin—it doesn’t really matter. He’s there to harvest information.
Myers is a plant breeder and professor of genetics at Oregon State University. The broccoli in his field has a long and bitter story, which he told me last September at the university’s research farm. We sat at a picnic table under a plum tree that had dropped ripe fruit everywhere; around our feet the little purple corpses hummed with wasps that had crawled inside to gorge on sweet flesh. Myers has dark hair and dark eyes that are often set behind tinted glasses. In public he rarely registers enough emotion to move the thick mustache framing his mouth. Still, as he talked about the broccoli his voice buckled, and behind those shadowy lenses his eyes looked hard and tense.
In 1966 a breeder named Jim Baggett—Myers’s predecessor at Oregon State—set out to breed a broccoli with an “exserted” head, which meant that instead of nestling in the leaves, the crown would protrude on a long stalk, making harvest easier. The method he used was basic plant breeding: mate one broccoli with another, identify the best offspring, and save their seed for the next season. Repeated over decades by Baggett and then Myers, this process produced the broccoli in the field that day. The heads were so nicely exserted, sparrows used them as a perch.
Most classical plant breeders will tell you that their work is inherently collaborative—the more people involved, the better. Baggett had used versions of another broccoli called Waltham, released by the University of Massachusetts in the 1950s, as part of the foundation for his original exserted-head lines. Hoping to advance its evolution by letting others work on it, he and Myers shared their germplasm (an industry term for seed) with breeders throughout the United States. One recipient was the broccoli division of Royal Sluis, a Dutch company that had a research farm in Salinas, California. Through the channels of corporate consolidation, that germplasm ended up with the world’s largest vegetable-seed company, Seminis, which in 2005 was bought by the world’s largest seed company, Monsanto. In 2011, Seminis was granted U.S. Patent 8,030,549—“Broccoli adapted for ease of harvest”—whose basic identifying characteristic was an exserted head. More than a third of the original plant material behind the invention was germplasm that Baggett had shared in 1983.
As Seminis began previewing its Easy Harvest broccoli to the farm press in 2011, the company’s lawyers began calling Myers, requesting more samples of broccoli seed. The patent they held covered only a few specific varieties that the company had bred, but now they were applying to patent the trait itself—essentially, any sizable broccoli with an exserted head. They needed the Oregon State plants for comparison to prove their invention was, in patent language, truly “novel.”
Last August the examiner seemed dubious, writing, “Applicant is in possession of a narrow invention limited to the deposited lines; however, they are claiming any and every broccoli plant having the claimed characteristics.” The application was given a “Final Rejection.”
And yet, as Myers told me at the picnic table in September, “That’s not necessarily final.” Just before Thanksgiving, Seminis appealed, beginning a process that may last for years. As one intellectual-property manager who helps write patents for the University of Wisconsin told me, some examiners simply “cave and grant the broader claims as they get worn down by the attorneys’ arguments.” If Seminis receives the patent, their claim would likely encompass the plants growing in Myers’s plots at Oregon State, meaning they could sue him for infringement.
Myers is not alone in this predicament. Irwin Goldman, a professor at the University of Wisconsin, had been developing a red carrot for 15 years when, in 2013, he learned that Seminis had an application pending for “carrots having increased lycopene content”—i
n other words, very red carrots. Likewise, Frank Morton, a small-scale, independent plant breeder in Oregon, had finally achieved a lettuce that is red all the way to its core, only to find that the Dutch seed company Rjik Zwaan had received a patent on that very trait. Their cases are just some of many.
When Myers talks about the issue, his frustration seems to turn him inward toward greater silence. But Morton is considerably less reserved. “It rubs me the wrong way that works of nature can be claimed as the works of individuals,” he said, his voice growing louder and louder. “To me, it’s like getting a patent on an eighteen-wheeler when all you did was add a chrome lug nut.”
Myers contends that when applied to plants, patents are stifling. They discourage sharing, and sharing is the foundation of successful breeding. That’s because his work is essentially just assisting natural evolution: he mates one plant with another, which in turn makes new combinations of genes from which better plants are selected. The more plants there are to mix, the more combinations are made, and the more opportunities there are to create better plants. Even some breeders who work for the companies that are doing the patenting still believe in—indeed, long for—the ability to exchange seed.
“It’s this collective sharing of material that improves the whole crop over time,” Myers told me. “If you’re not exchanging germplasm, you’re cutting your own throat.”
If all of this seems like the concern of a specialized few, consider that plant breeders shape nearly every food we eat, whether a tomato from the backyard or the corn in the syrup in a Coke. Because of intellectual-property restrictions, their work increasingly takes place in genetic isolation and is less dynamic as a result. In the short term that can mean fewer types of tomatoes to plant in the garden or fewer choices for farmers and, by extension, consumers. In the long term it could hinder the very resilience of agriculture itself. Having access to a large genetic pool is critical for breeders who are adapting crops to the challenges of climate change. Every time intellectual-property protections fence off more germplasm, that gene pool shrinks.
What infuriates Myers, though, is that patents such as the one Seminis is seeking don’t just impede sharing; they deter others from using their own germplasm. As the examiner noted, Seminis’s patent application claims essentially all broccoli with an exserted head of a commercial size. If Myers’s plants are too similar to those grown by Seminis, he won’t be able to release his own variety for fear of patent infringement. Even if he did, no farmer or seed company would use it lest they be sued for the same violation.
“If they get the patent, they really hold all the cards,” Myers said, wasps buzzing around his feet. “Then it comes down to at some point deciding whether to continue my program or to hang it up. Sell off the germplasm . . .” His voice trailed off. Then he gave a sad little laugh. The only buyer, of course, would be Seminis.
Fueled by both frustration and outrage, Myers, Morton, and Goldman helped establish a subtly radical group called the Open Source Seed Initiative (OSSI) in 2012. Operating under the radar, its mission was to reestablish free exchange by creating a reservoir of seed that couldn’t be patented—“a national park of germplasm,” Goldman called it. By 2013 the group had two dozen members, several of them distinguished plant breeders from public universities across the country.
OSSI’s de facto leader is Jack Kloppenburg, a social scientist at the University of Wisconsin who has been involved with issues concerning plant genetic resources since the 1980s. He has published widely about the concept behind OSSI, and his words are now echoed (even copied verbatim) by public plant-breeding advocates in Germany, France, and India. As he explains it, for most of human history seeds have naturally been part of the commons—those natural resources that are inherently public, like air or sunshine. But with the advent of plant-related intellectual property and the ownership it enables, this particular part of the commons has become a resource to be mined for private gain. Thus the need for a protected commons—open-source seed. Inspired by open-source software, OSSI’s idea is to use “the master’s tools” of intellectual property, but in ways the master never intended: to create and enforce an ethic of sharing.
Kloppenburg’s office plays to caricatures of lefty academics: every flat surface stacked with books and papers, a poster of Karl Marx on the wall. At OSSI meetings, amid a sea of plaid button-downs, he sticks out in his collarless, hemp-looking shirt. But he is fiery and, as one OSSI member says, “persistent as hell.”
“The reason I’m doing this,” he said, leaning forward in his creaking swivel chair, “is that I’ve spent the last twenty-five years doing the other thing, and what have we got?” That “other thing” has been exploring nearly every possible avenue to put control of seeds back in the hands of farmers and public-minded plant breeders: orchestrating international treaties, challenging interpretations of patent law, lobbying to amend the laws themselves—in other words, slow change. Indeed, over the course of three decades, it has felt to Kloppenburg like barely any change at all. Now nearing retirement, he wants action. He sees open source as a kind of end run. “The beauty of it,” he said, “is that finally we get to create some space that is ours, not theirs.”
As Kloppenburg talked about OSSI, he covered territory from the monopolistic tendencies of the American Seed Trade Association to Colombian peasant protests to the little-known story of German prisoners of war being used as forced labor in American corn-breeding fields. He pulled a hulking dictionary from the bookshelf and read aloud the precise definitions of ownership and property. He made it clear that while OSSI’s practical goal was to create a reservoir of shared germplasm, its true mission was to redistribute power.
In this era of ownership, the consolidation of seed companies has meant the consolidation of control over germplasm, the industry’s most essential tool. The plant breeders behind OSSI decry that trend for the constraints it puts on their individual breeding work, but they also see its damage in global terms. As founding member Bill Tracy, a sweet-corn breeder at the University of Wisconsin, articulated in his paper “What Is Plant Breeding?”: “Even if we assume that the one or two companies controlling a crop were completely altruistic, it is extremely dangerous to have so few people making decisions that will determine the future of a crop . . . The future of our food supply requires genetic diversity, but also demands a diversity of decision makers.”
People who sell seeds have always struggled with an inconvenient reality: their merchandise reproduces itself. In the past this has meant that farmers needed to purchase it only once, and competitors could make a copy by merely sticking it in the ground. In order for seeds to become a commodity and generate a profit, there had to be a reason for people to buy them year after year. Over the course of the 20th century, the industry devised certain solutions, including hybrid seeds and “trade-secret” protections for their breeding processes and materials. But perhaps the most effective solution is the application of intellectual-property rights, of which the utility patent is the gold standard.
More commonly associated with things like electronics and pharmaceuticals, the utility patent is a fortress of protection. It lasts for 20 years and allows even inadvertent violations to be penalized. Since the Patent Act of 1790, its intent has been to inspire innovation by giving exclusive rights to reproduce or use an invention, allowing its creator to reap a just reward. It was in exactly those terms that Monsanto’s vegetable communications manager, Carly Scaduto, explained the Seminis exserted-head broccoli patent to me. “On average, it takes Monsanto vegetable breeders between eight and twelve years to develop and commercialize a new vegetable seed variety,” she wrote. “Obtaining patents [is a way] for us to protect our time, ideas, and investment spent to develop those products.”
It took seed companies nearly a century to secure that protection. As early as 1905 industry leaders advocated “patent-like” protection for plants, but they ran up against society’s ethical resistance to patenting a product of nature
. This view was famously aired by the United States Patent Office itself in 1889, in its denial of an application to patent a fiber found in pine needles. If it were allowed, the commissioner reasoned, “patents might be obtained upon the trees of the forest and the plants of the earth, which of course would be unreasonable and impossible.” But many plant breeders insisted that their work was on a par with that of mechanical and chemical engineers. Their desire to achieve the same exclusive control over their inventions eventually led to the Plant Patent Act (PPA) of 1930. According to the committee report accompanying the Senate’s version of the bill, the purpose was to “assist in placing agriculture on a basis of economic equality with industry . . . [and] remove the existing discrimination between plant developers and industrial inventors.” Thomas Edison, already a household name for his own inventions, was enlisted to lobby for the bill and later lauded the PPA’s passage to a reporter from the New York Times. “As a rule the plant breeder is a poor man, with no opportunity for material rewards,” he said. “Now he has a grubstake.”
What finally became law was in fact quite narrow. Instead of allowing utility patents for plants, the PPA created a new “plant patent,” which applied only to plants reproduced asexually, like roses or apples, whose limbs are cloned. It excluded plants that reproduce sexually, through seed—which included wheat, corn, rice, and nearly every other staple food crop. The official reasoning was that sexually produced offspring weren’t guaranteed to be identical replicas of the original plant—“true to type”—and so enforcement of a patent would be difficult. (It is notable, though, that an additional exclusion was made for tubers, which reproduce asexually but include potatoes—another indispensable food.) Writing in the Journal of the Patent Office Society in 1936, patent examiner Edwin M. Thomas explained the true reasoning: “The limitation, ‘asexually reproduced,’ was put in the law to prevent monopolies upon the cereal grains or any improvements thereof, while the limitation, ‘other than tuber-propagated’ was introduced to prevent patent monopolies on potatoes, etc.” Congress had condoned the general concept of patenting plants, but it had drawn the line at patenting seeds of the sort that farmers plant and people eat.
The Best American Science and Nature Writing 2015 Page 11