In an Op-Ed article for The Times on Tuesday, George Kimbrell and Debbie Barker of the Center for Food Safety present a forceful argument against patents on seeds or any other "product of life." The issue arises because the Supreme Court is considering the case of a farmer sued by Monsanto for infringement because he replanted soybean seeds that the chemical company had patented.
At the oral arguments Tuesday, the justices acknowledged that they had never before considered a patent on a live, "self-replicating" invention. (It's the first of two on the docket this year involving patents related to genes; the other involves a patent over human genetic information linked to breast cancer.)
Two questions dominated the discussion, which didn't go well for the farmer, Vernon Hugh Bowman. The first was what, exactly, was the patented product that Monsanto was selling. And the second was what incentive companies would have to develop new seeds -- or vaccines or other easily replicable products -- if the patent protection was exhausted when the first generation of the product was sold.
The case, Bowman vs. Monsanto, has potentially enormous implications for not just agriculture, but any field where copying is essential to the use of a patented product. Think biotech and software, for example.
And unlike most Supreme Court cases, this one packs an emotional punch. Kimbrell and Barker warn about the dangers of patents giving corporations control over the food supply, writing, "Seeds, unlike computer chips, for example, are essential to life. If people are denied a computer chip, they don't go hungry. If people are denied seeds, the potential consequences are much more threatening."
I'll get back to that point, but first let's look at the legal issues here.
Bowman bought an unsorted mixture of soybeans from a grain elevator, including beans grown from Monsanto-patented seeds (which were beans too -- soybeans are their own seeds). The latter, which have come to dominate the industry, were genetically modified to resist Roundup, a powerful herbicide sold by Monsanto.
According to Monsanto, Bowman planted the seeds, then doused the emerging plants with Roundup. He harvested the surviving plants, saving a portion of the beans as seeds for a new crop. After Bowman repeated this practice for several years, Monsanto sued, and it prevailed in U.S. District Court and a federal appeals court.
Bowman's lawyer, Mark P. Walters of Seattle, contended that Monsanto's patented product was designed to reproduce, and so its patent could not extend to the beans generated by the seeds it sold. In other words, by selling the seeds, Monsanto sold the right to grow plants that produced new seeds.
Several of the justices reacted skeptically to this argument, however. They suggested that Monsanto's patent barred farmers from copying the seeds, which is what Bowman effectively did by replanting the beans he grew from Roundup-ready seeds.
A second issue troubling the justices was whether the purpose of the patent would be defeated if the court adopted Bowman's position on patents for self-replicated items. Here's how Chief Justice John G. Roberts Jr. put it: "Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?"
The question speaks to the constitutional purpose behind patent law, which is to promote progress in science by giving inventors an incentive to make discoveries. Walters said Monsanto could protect its investment in "Roundup Ready" seeds by taking a different approach to sales, structuring them to provide more contractual limits over the sale of the beans farmers grew. The justices seemed skeptical of that argument too.
The most sweeping implication of Monsanto's argument is that its patents effectively bar farmers from doing anything with the beans they grow from Roundup Ready seeds, because even that initial set of beans amounts to infringing copies of Monsanto's seeds.
The seed sales contract suggests as much, granting farmers a license to do whatever they want with those beans except replant them. Justice Anthony M. Kennedy said he had "great difficulties" with such a characterization, adding that a "sensible" way to look at the case is to say simply that planting the seed for the purpose of creating beans to replant violates Monsanto's patent.
Now back to Kimbrell's and Barker's complaint about corporate control over seeds. The Center for Food Safety's agenda, in case it wasn't clear from the Op-Ed article, isn't to stop seed patents so much as to deter the production of genetically modified foods. They contend that Monsanto and other "agrochemical" companies have pushed farmers into genetically modified seeds such as Roundup Ready soybeans by buying up other seed companies and pulling ordinary seeds off the market.
An alternative explanation is that herbicide-resistant seeds, while more expensive, have come to dominate the market because they're more appealing to farmers. Among other things, they can make it easier to control weeds and increase yields.
More important, questions about whether such products should be sold, whether farmers should use them and whether natural alternatives are readily available aren't issues for the Supreme Court or any other judicial body. They're policy questions for lawmakers and regulators to decide.