Goliath Wins

The verdict is in and our big government sided, unanimously, with big business. I’d like to say I’m surprised, but that would be a lie. I am disappointed and more than a little concerned about what this means for the future of agriculture and science in general.

Back in February I posted about a case that was up for oral argument before the Supreme Court, Bowman v. Monsanto. Today the Court handed down its decision supporting Monsanto. Since I already wrote a summary of the case, I won’t bore you with all the details again. Instead I want to focus on the arguments, the decision, and the rationale behind it.

The case centered on the patent exhaustion doctrine which works like this: I invent some cool new item and patent it. You want said item so you buy it from me. You like the product and buy 10 more to sell on Ebay. I can’t come after you for patent infringement because that patent is exhausted after the original sale. However, you cannot buy one item from me, replicated it and sell the copies for profit. That would infringe on my patent.

That was the issue before the Court. Mr. Bowman argued that once the seeds had been purchased from Monsanto, the patent was exhausted and what a farmer chose to do with them from that point forward was out of Monsanto’s control Monsanto argued that the seeds in question – second generation seeds – were effectively copies and therefore still protected.

In the written opinion, Justice Kagen states:

Under the doctrine of patent exhaustion, the authorized sale of a patented article gives the purchaser, or any subsequent owner, a right to use or resell that article. Such a sale, however, does not allow the purchaser to make new copies of the patented invention. The question in this case is whether a farmer who buys patented seeds may reproduce them through planting and harvesting without the patent holder’s permission. We hold that he may not.

While I understand the logic employed, it seems like the Court is effectively saying that farmers can’t use the purchased product in the very way it was intended to be used (planting and harvesting). I know that’s not exactly it. They, of course, can plant and harvest the seeds. They just can’t save and replant them. But that’s how seeds work. That’s how they’ve always worked.

It isn’t the farmers’ fault that Monsanto created a self-replicating product. Why is it the farmers’ responsibility to control the seeds? Why isn’t the responsibility put back on Monsanto to create a better product? You’d think that a company with the financial and scientific resources Monsanto has would be able to come up with a genetically modified soybean that couldn’t reproduce. Actually, that would be pretty fantastic because then all the farmers out there who don’t plant GM crops wouldn’t have to worry about cross-pollination issues. Really, we all would win in that situation. Come on, Monsanto! Surely you can figure this out.

All joking aside, this is a disturbing precedent. The Court did clearly state that their decision was specific to this particular case and that similar issues would have to be decided to a case-by-case basis. But that won’t stop lawyers and corporations from using this decision to support their right to patent life in future cases. Think about the ramifications. This doesn’t just affect agriculture, but also science (especially in the areas of artificial intelligence) and medicine (vaccines, stem cell research, cancer and HIV treatments).

As for Monsanto, whether you agree with genetic modification or not, their bully tactics should bother you. They sued Vernon Bowman, a small-time farmer who posed no real threat to them, for $85,000. Anyone want to hazard a guess how much they spent in legal fees fighting this case? The numbers aren’t out, but I can guarantee you it was more than $85,000. Even so, it was probably just pocket change for a company who earned $126 million in a single quarter.

For further reading:

On a slightly related and lighter note, I give you Jon Stewart on the Monsanto Protection Act:

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