Chapter 19 explores U.S. agribiotech patent issues as they relate to the food supply chain. Agribiotech patents challenge how we think about fundamental issues of seed ownership, innovation, and when downstream uses are or should be permissible. The chapter first sketches the arc of agribiotech developments in the U.S. from its colonial past to the current day and observes the evolution of protection over seed traits transition from an open socialist-style franchise to a tightly controlled oligarchy subsisting on patent rights. It then assesses patent exhaustion through the lens of Bowman and the Court’s more recent decision in Impression Prod., Inc. v. Lexmark Int'l, Inc.Finally, the author offers observations on three issues: (1) patentees and generic seed companies will remain invested in maintaining compliance for transgenic seed exports; (2) the recent spate of mega-mergers continue the transformation set in motion by the privatization of agriculture more than a century ago, with these mergers benefiting agribiotech companies and farmers abroad, unfortunately, at the expense of U.S. farmers at home; and (3) developments such as retaliatory tariffs on transgenic seed exports will affect agribiotech innovation as surely as developments in patent law, and should be part of any comprehensive analysis of dynamic trends in the food value chain.

Chapter 7 focuses on the situation in the US, exploring American competition policy with respect to the agriculture and the food system. Public enforcement is split among the Federal Trade Commission, the Antitrust Division of the Department of Justice and the Department of Agriculture. This split creates additional discontinuities in enforcement actions. This Chapter finds that antitrust enforcement has been weak and inconsistent in the United States with respect to anticompetitive conduct and market structure affecting farmers. Buyer power issues have been largely, but not entirely, ignored. The Department of Agriculture has failed to use its authority to protect farmers. Despite the apparent promise of the Obama administration in its early months in office, the trend for the last three plus decades has been an overall failure to protect the long-term interests of producers and consumers in a workably competitive agriculture-food system.