May 20, 2013
To paraphrase “Jurassic Park,” that enduring classic of 1990s cinema, nature always finds a way.
But apparently, so do agribusiness giants.
Last Monday, the Supreme Court ruled that farmers could not use copies of Monsanto’s genetically engineered seeds without paying the agribusiness giant a fee. Doing so, it held, would violate the company’s patent on valuable agricultural products, like soybeans that can resist herbicides.
What caught my eye about this case was that the farmer who was sued argued that he did not make copies of the patented seeds. Instead, he claimed that seeds naturally sprout, turn into plants and produce seeds for the next generation. In other words, nature made the copies, not him.
As I understand it, his argument was undone by a contract Monsanto makes farmers sign promising not to use copies of genetically engineered seeds. The court also denied that the farmer, Vernon Bowman, was a passive player in the replication of patented seeds, saying “it was Bowman, not the bean, who controlled the reproduction.”
Had that contract not existed, though, I wonder if things would have been different. I accept the logic of the argument that it is natural for seeds to replicate, and it makes sense to me that barring a contract like the one Monsanto used here, people ought to be free to use the natural fruits of products they legally procured.
As society continues to tap into the benefits of altered life-based forms, from genetically engineered crops to gene-based therapies and treatments, we are going to see more and more cases that take up the difficult task of applying our intellectual property regime to living or life-based things.
Writing for the majority, Justice Elena Kagan insisted this decision was narrow. However, it does add to the increasing body of case law that provides private parties with more and more control over life-based inventions.
While I understand that we need to allow, say, biopharmaceutical companies to profit from gene-based breast cancer treatments so that they have an incentive to develop them in the first place, the way we seem to be inching toward private control of nature– of life itself, even — makes me a little nervous.