Let’s start from the top.
A patent is an exclusive right to use or license a discovery, invention, or process for a limited amount of time (usually around 20 years), designed to encourage innovation by rewarding the discoverer or inventor for their scientific efforts. It is believed that at least 60% of pharmaceuticals and 30% of chemicals would not have been developed or introduced without the promised protection of a patent. Who would bother with research and development if competitors would immediately steal their ideas? Scientific progress would stall. It is true that between licensing fees and lawsuits patents can pose an obstacle to complete scientific freedom and transparency, but we are better off with the patent system than without it.
Regarding biological patents such as those for genes, genetically modified organisms, or Monsanto plant seeds, the United States has been patenting chemical compositions based on human products since 1906, when purified adrenaline was patented, since it was sufficiently isolated from the human body. With regards to being “sufficiently isolated”, a human arm would not be patentable material since the isolation of a human arm is common knowledge for modern surgeons. This was not the case for adrenaline in 1906. In 1980, the first genetically modified living organism was patented: it was a bacterium designed to consume oil in oil spills. The bacterium was not naturally occurring, and deemed sufficiently different from existing bacterium to be patentable. Thus it follows that patenting Monsanto’s genetically modified soybeans was valid, because they do not exist in nature, and had the novel feature of resisting certain pesticides, allowing farmers to spray their entire fields with pesticides without fear of ruining the crop.
Unfortunately plants are strange and self replicate, leading to the question of whether or not farmers will be able to save seeds from one crop of Monsanto soybeans to the next. This mirrors the brouhaha behind software licenses. Like soybeans, software is valueless if it can be copied and distributed without restriction. Thus software is usually sold with a limited number of licenses.
Currently in Indiana, farmer Hugh Bowman is embroiled in a Supreme Court case with Monsanto about whether or not a patent on seeds can extend beyond the first generation of products. Bowman had bought soybeans from a grain elevator which just happened to contain Monsanto soybeans, and planted them. Seeds in grain elevators are meant for consumption, either for human or animal.
Monsanto’s current practice is to have farmers who plant Monsanto’s soybeans sign an agreement to not save seeds. Monsanto does not control how farmers distribute their harvested crops, as in accordance with patent exhaustion: the concept that after a patented object is sold, the patent holder loses control over how it is used. In essence, Monsanto has a monopoly only on who plants its soybean seeds, rather than who the crop can be sold to, or stored. This is fair, as it mirrors the purchase agreements for any other product. If you buy a car, the dealer will make sure that it is you that gets exactly one car, but will not put any limits on where you can or cannot drive said car.
One could think of it as Monsanto having the patent to the plant’s genetic material only. The monopoly on who plants Monsanto soybeans is valid, since that was what was protected by the patent to the Monsanto soybean’s genetic material. Theoretically Monsanto would be the sole distributor of Monsanto soybean seeds for the purposes of planting – that is, its patent protects against the replication of the plant’s genetic material without a license agreement.
To reuse the parallel between software and soybeans, suppose Macklemore went to a thrift shop and inexplicably came across a copy of SimCity wedged inside his newly purchased broken keyboard. He would own the physical copy of SimCity, but he would have no right to play it without an accompanying license. In the same way, Bowman owns the seeds that he acquired, but as they are Monsanto soybean seeds, he does not own the license to plant them and replicate the engineered genetic material contained within.
And nor should he own that right. To allow farmers to save each year’s seed and distribute it as they see fit would be disastrous towards Monsanto’s business model. One acre of soybeans produces enough seeds to sow over 40 acres of soybeans. The value of Monsanto’s soybean seed would plummet directly after the first harvest if farmers could buy Monsanto seeds from any other farmer for what I expect would be a deeply discounted price. This would completely invalidate the protection offered by Monsanto’s soybean patent.
Bowman should have exercised diligence and acquired a license to plant the seeds he bought from the grain elevator.
Leave a Reply