Saturday, March 9, 2013

Bowman v. Monsanto

I just listened to the oral arguments for Bowman v. Monsanto, and was thoroughly disappointed. For those of you who aren't familiar with the case, it was recently argued in front of the Supreme Court on February 19, 2013. The case presented the question of how long patent rights should be extended on a self-replicating technology. A legalistic way of saying: can someone own a certain type of plant and prevent others from growing the plant and collecting the seeds to grow the plant again without having to purchase new seeds from the original owner? Maybe it seems strange to most of us because the idea that one could even "own" a species of life goes against our intuition. But the court has affirmed a company's right to own a specific, genetically modified, form of life back in the 80s. So, even though it seems strange, that right exists, and it has given rise to bio-tech industries that seek to modify DNA for various reasons. 

Here's what I don't understand: What is the high court's aversion to the language of science? There was not a single mention of the word biodiversity or ecology or increasing dependence on chemical inputs, which devastates water supplies and other issues of public interest. Apparently, those issues are irrelevant. We are talking about patent exhaustion and not soil exhaustion... Everything in this case is framed in the language of business and economics - productivity, efficiency and economic incentives for innovation. No regard to biodiversity extinction or environmental stability. 

Yet, even in the court's comfortable world of pro-business jargon, they miss a huge point: they don't even mention the inevitable Monsanto monopoly that would result by ruling in favor of the seed producing giant - the future implication that Monsanto, quite possibly, could patent and control our entire food supply chain from seed all the way through distribution. That Monsanto, who already controls 90% of this market, could dictate how much it costs to be a farmer and what process those farmers use to grow our food, and therefore, they control how we manage our environment and what we eat and what we feed our children. Is that good for consumers and businesses?

Forget the fact that we are talking about biological life here; that there are bigger implications; that these so called intellectual property rights have never been extended to seeds for thousands of years of human agriculture; that seeds can cross-germinate and reproduce, and as a result, people will inadvertently infringe on Monsanto's right to control everything. The court now views seeds the same way as any other "self-replicating technology." Seeds are merely fungible articles like software programs. So, does that mean we have intellectual property rights in any self-replicating technology that we help to create? Can we now patent different breeds of dogs, since we facilitated their breeding? Or better yet, maybe we could patent our own children and collect royalty payments from them if they decide to have children their own? After all, those are my genes!

My next disappointment: Bowman isn't exactly the organic farmer hero that most treehuggers were hoping for. He actually really likes Monsanto and the glyphosate resistant soybeans that they created. Bowman was just a cheap ass who wanted to save some money, so he bought seeds from the grain elevator instead of buying from Monsanto directly. He knew that 90% of all US farmers are using Monsanto's "Round up Ready" seeds, and that all he would have to do is spray his crop with glyphosate, and the plants that didn't die would be "round-up ready." So, that's what he did. And then he saved the surviving seeds from that batch, and used them to grow his next crop, obtaining the Monsanto variety without having to buy from them directly. Not exactly the guy we were all hoping would take down the Ag. giant in this case that has been framed as a "David versus Goliath" story. His goal is not to be a better steward in farming, but to get around having to pay Monsanto every year for seeds.  

On one hand, it seems that a ruling in favor of Bowman would strike a much needed blow to Monsanto, but that blow would be more like a kick in the balls than a shot to the heart. Monsanto would retain the right to patent GMOs, and it would remain economically unfeasible for farmers to get their seeds from anyone else like Bowman did here. And the extending implication of eliminating intellectual property rights in self-replicating technologies after they are purchased could arguably stunt the growth of crucial uses in medical technologies like vaccines.

Of course, the SCOTUS could have selected a different case to grant cert. - perhaps one where the farmer wasn't so obviously intending to exploit loopholes, but apparently, they have no intentions of limiting Monsanto's power. Unfortunately, it looks like Monsanto will make it through this case unscathed, and the hundreds of lawsuits they bring to farmers each year will continue. Hooray, for the economy!

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