In the summer of 2000, an ill wind blew onto David Vetter’s 280-acre farm in Marquette, Nebraska. The farm had been organic since the 1950s, and Vetter had been breeding his own corn seed in the field using traditional techniques. The idea was to protect his independence as he watched the seed industry rapidly consolidating into the hands of Monsanto and a few other “gene giants.” Then, in 2000, his seed tested positive for genetically modified organisms (GMOs). “They killed us,” he says. “Ten years of work was gone just like that.”

In 2005 genetically engineered (GE) seed was planted on 52 percent of US corn acreage. However, thanks to wind-borne pollen and other contamination, the agricultural community now commonly accepts that no American corn is 100 percent free of GE material–not even if it’s certified organic.

The good news is that plant breeders might have a solution. It lies in a group of naturally occurring corn genes called GaS, which is bred into corn varieties using standard hybridization. With GaS, a plant will reject all pollen that doesn’t also have those genes. It could be a miraculous biological fence to keep out those privately owned GE genes. There’s just one hitch: It, too, is now privately owned.

As of April 2005, Hoegemeyer Hybrids, of Hooper, Nebraska, holds a patent for the use of GaS in hybrids and inbred lines of yellow dent corn–the kind that covers one-quarter of American farmland and anchors our entire agricultural economy. The company’s GaS seed, dubbed PuraMaize, is slated for US release in 2008 and has patents pending around the world.

Such patents have lately become a frustrating fact of life in the plant-breeding community, but what really stings about this one is that it probably shouldn’t have been issued. Researchers have known and written about GaS since the 1940s. It has been used in white and yellow corns, and employed in countless popcorn varieties to protect them from crossing with nearby field and sweet corns–to protect their “pop.” As one researcher put it, “I’d love to hear someone explain how Hoegemeyer’s use qualifies as new.”

Among those left frustrated is Margaret Smith, a professor and plant breeder at Cornell University. In 2002 Smith began breeding GaS into corn varieties in response to pleas from local organic growers for protection against pollen drift. As a public breeder, Smith’s job is to find out what farmers need, and try to provide it. But because of the patent, anyone who wants to use her GaS variety will need to comply with whatever licensing fees and royalties Hoegemeyer Hybrids requires.

As a result, smaller farmers like Vetter may find that PuraMaize is out of their reach. The university researchers and seed companies that smaller farmers rely on often have neither the staff to negotiate licensing agreements nor the money to pay them. The companies with the means to use the technology would tack the added costs onto the price of the seed, and possibly require a large minimum purchase, both of which could make it too expensive for Vetter. Or companies could simply decide that, for any number of reasons, producing seed that works for Vetter’s region is not profitable enough–so Vetter wouldn’t even be given the chance to buy it.

The sad thing is that Hoegemeyer Hybrids is, in some ways, also one of the “little guys.” It was founded in 1937 and has always been a family-owned business. After a recent spate of corporate acquisitions, it is also the last remaining small seed company in Nebraska. Indeed, Hoegemeyer sought the patent on GaS partly as a strategic move to preserve its independence. “We’re not looking to make a zillion dollars off of this or to exclude other people from the marketplace,” chief technology officer Tom Hoegemeyer said. “We just want to be able to participate in the industry for the long term.”

Despite good intentions, in this age of consolidation it’s likely that Hoegemeyer Hybrids and its patent will be bought out too. The company already has a formal partnership with Syngenta, the very corporation that acquired Hoegemeyer’s seed-company neighbors. This Swiss company is the world’s largest agrichemical manufacturer and one of the top four seed producers. Through the partnership with Hoegemeyer, Syngenta had a hand in developing PuraMaize, and in January William Olson, a former sales development manager with Syngenta, came on as PuraMaize development manager. Some think it’s only a matter of time before the absorption is complete.

In such a gene giant’s hands, the GaS patent could be applied the same way that patents on GMOs are now. To use GE seed, farmers sign contracts that prohibit seed-saving and allow the corporation to monitor the crops in farmers’ fields for violations indefinitely, even if the farmer stops buying the seed. (The legal departments that enforce this are, of course, amply funded and staffed.) Given that GaS could be critical for organic growers, some researchers fear that such ownership of the patent would mean even greater corporate control over organics. And that’s all if the gene stays in use. Given that pollen drift has spread GMOs like a nefarious Johnny Appleseed, it could be in biotech’s interest to shelve the GaS shield.

The exact future of GaS remains to be seen. But the potential consequences point to a deeper problem in twenty-first-century plant breeding, rooted in the patent system. Before 1980 plant breeding was governed by the Plant Variety Protection Act (PVPA). This law allowed breeders to own the plant varieties they created but kept the raw genetic materials in the public domain. When in Diamond v. Chakrabarty the Supreme Court ruled that it was legal to patent genes, the rules changed. If PVPA protection acted like a copyright on a book, the gene patents meant ownership of individual words. In order to write today, one must have the money to buy the words.

It follows that those who end up controlling plant breeding guide their decisions by profitability, not what is best for the farmers or the public they serve. “This system offers ways for people to make money quickly but provides no public good,” Vetter says. “So far as I can tell, the only ones that are served are the holders of the patents.” Meanwhile, those without the money must try to write solutions using an increasingly limited vocabulary. This is why the GaS patent is such a slap in the face: Farmers and publicly funded breeders such as Smith have been largely shut out of the process by which agriculture’s decisions are made. Those tools still in the public domain are crucial to their work; with Hoegemeyer’s patent, another one is lost. “We as a society don’t seem to have a venue for deciding if this is a good thing,” Smith says. “We seem to think that if the market will support it, it must be OK. But I, for one, don’t necessarily agree with that.”