In the world of fairy tales, Jack, an impetuous boy, obtained magic beans that led to an encounter with a giant. Jack not only slew the giant, he took the giant’s treasure including the hen that laid golden eggs. In real life, the giants usually win and keep all the gold. We shall see if that holds up next year when the Supreme Court hears the case of Bowman vs Monsanto.
The corporate giant Monsanto sells genetically modified soybean seeds that are resistant to Roundup, an herbicide manufactured by Monsanto. Monsanto makes a lot of money selling the seeds and they have a patent on them. The farmer who buys the seeds is obligated to buy new seeds for every planting. This goes against a centuries old practice of farmers collecting self-generated seeds to replant the crop. There is also a problem for farmers whose fields become contaminated by Monsanto seeds blowing in. Are they and their crops subject to Monsanto’s patents?
Monsanto has sued over one hundred farmers for illegally using their seeds. The company claims it is not after those farmers whose fields become contaminated with the GMO (genetically modified organism) seeds but do not wish to use them. Monsanto is very diligent in going after farmers who try to re-seed using self-generated seeds. Farmers like Mr. Bowman.
Farmer Bowman purchased soybean seeds from a seed company. Among the seeds sold were the Monsanto genetically modified seeds. Bowman tested the soybean crop for Roundup resistance and identified which plants were resistant. He then harvested the self-generated seeds from those plants for his second planting. Monsanto claims that is a violation of its patent rights. Bowman contends the patent was exhausted when the seed company sold him the seeds.
Bowman said he bought the seeds as part of an undifferentiated mix of “commodity” seeds from a grain elevator, and that farmers had used such seeds for planting for decades. Commodity seeds come from farms that use biotech seeds as well as those that do not. No licensing agreements are required with the sale of such seeds.
Bowman argued that he should be able to use those second-generation seeds for a natural and foreseeable purpose of planting and that Monsanto’s patent rights were exhausted after its initial sales of the seeds. Monsanto prevailed and Bowman was ordered to pay more than $84,000 in damages.
The U.S. Patent Office was established in 1790. Patents are crucial to innovation, allowing inventors a right to their intellectual property for a period of time because inventors have to spend a lot of effort and money pursuing the creation of innovative products. There are limitations to intellectual property rights. For example, patents are not available for the discovery of laws of nature or abstract ideas.
Section 101 of the Patent Act stated
“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”
In 1930, Congress felt it necessary to expand on the Patent Act by passing The Plant Patent Act. It was understood that the 1790 Patent Act did not apply to horticulture. The Plant Patent Act was the first in the world to grant patent rights to plant breeders. This legislation did not prevent others from collecting self-generated seeds and planting them for a new crop.
In 1970, Congress passed The Plant Variety Protection Act . Now seed companies could not reproduce the seed, but farmers could still save seeds and use them for replanting. Certificates, not patents, were granted. The certificates were issued by the Dept. of Agriculture, not the Patent Office.
Still unanswered was whether or not a patent could be obtained for a living organism. In 1980 the Supreme Court in Diamond v. Chakrabarty said yes. This case involved a patent for an oil eating bacterium. Justice Berger writing for the majority 5-4 opinion decided patentable subject matter included
anything under the sun that is made by man
But what if man is only tweaking that which has been made by God?
We are entering a brave new world of biotechnology—gene therapy, tissue engineering, tissue and organ regeneration—are real . Amazing and lucrative advances are being made at a rapid rate. The Chinese just announced they used urine to make brain cells. No doubt they are continuing research in how to incorporate melamine in the process. If there’s anything holding back the pace of biotech breakthroughs in the U.S. it’s this, Rush for patents is choking US stem cell research.
Has God’s patent on the building blocks of life expired? Will a few giant agribusinesses wind up in control of the food supply by owning rights to all the seeds? Will giant biotech companies own your heart if not your soul?
Fee, fi, fo, fum. They’ll grind your bones to make their bread.