Self-Replication at Stake in Monsanto Patented Seed Case
by: Truthout Posted on: May 07, 2013
By Simon Davis-Cohen, Truthout
Davis-Cohen’s reading of the Supreme Court hearing of arguments in Bowman v. Monsanto suggests that the essential philosophical, ethical and moral questions underlying the case were not and will not be addressed by the court.
Self-replication is a requirement for the continuation of life itself. When species participate in the replication of other species – when we plant our favorite tomato, when a butterfly pollinates its favorite flower – it is said that they co-evolve. This power to co-evolve and self-replicate is inherent, yet we find ourselves with our backs against the wall, fighting to retain it. In Bowman v. Monsanto, the US Supreme Court will soon decide who has rights to Genetically Modified (GM) seeds’ power to self-replicate.
On February 19, 2013, the Supreme Court heard arguments on whether patent law extends to the offspring of GM seed and self-replicating “technologies.” The case involves Monsanto, a corporation that genetically modifies plant genes, patents those genes and then sells GM seed and the pesticides the seed has been genetically modified to resist to farmers, versus a farmer, Hugh Bowman, who planted descendants of Monsanto seed without the corporation’s permission. Monsanto, whose former vice president Michael Taylor is the deputy commissioner for foods at the Food and Drug Administration, argued that its patent on the GM genes within the original seed was violated when Bowman planted and replicated the progeny of that seed. Bowman argued that those who purchase seed not only have a right to the crop from the original seed but also that crop’s ability to self-replicate.
The case has gained attention not only because of the implications for self-replicating technologies but also because of the philosophical questions attached. Computer software can self-replicate. GM genes, through their living host, can self-replicate. Plants self-replicate. But where does life end and technology begin? When does a GM species have rights; when is it property? And what rights do species that co-evolved with previously unmodified species have, if any? When is something an autonomous creature, free to self-replicate, and when is it a technology whose self-replicates can be patented and owned by another?
Addressing Marc Walters, Bowman’s attorney, Justice Stephen G. Breyer set the tone of the oral argument: “I’ll give you two [things] that you can’t do [with the patented seeds]. One, you can’t pick up those seeds that you’ve just bought and throw them in a child’s face. You can’t do that because there’s a law that says you can’t do it. Now, there’s another law that says you cannot make copies of a patented invention.” Farmers that buy Monsanto seed, Justice Breyer argued, only have rights to the crop of the original seed, but these rights are limited in that they do not include the right to plant that second generation to make a third.
Monsanto owns generation 1, which it sells to a farmer to plant. The farmer owns generation 2 and reaps the rewards or shortcomings of the crop. But who owns generation 3?
What if GM pollen from the original seed pollinates a neighboring farm? Does the cross-pollinated seed leave the world of the living and enter that of technology? Justice Elena Kagan brought up this issue of contamination, referring to some GM crops’ tendency to wind-pollinate and mix with natural crops. She cautioned that, “[Monsanto’s] position has the capacity to make infringers out of everybody.” Farmers whose crops are unknowingly pollinated by Monsanto GM pollen are liable to be sued by Monsanto should they save and plant (replicate) the contaminated seed, assuming, as Monsanto does, that the corporation owns generation 3. Other than Kagan’s comments, the issue of contamination and how life is transformed, legally, into technology never took a central role in the argument.
In Walters’ argument in defense of Bowman, he drew attention to the novelty of the case, stating, “This is obviously a brand new case where we’re dealing with the doctrine of patent exhaustion in the context of self-replicating technologies.” If someone purchases a self-replicating technology, does he or she have rights to the technology’s power to self-replicate?
Walters argued that the decision at hand is a question of purchasers’ rights to personal property versus patentees’ rights to use monopolies. He asked the court to honor its historical precedent of, “[choosing] the purchaser’s rights over the patentee’s rights to increase sales.”
Chief Justice John G. Roberts Jr’s corresponding logic: “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?” As Monsanto’s attorney Arbus Sherry argued, “There would be no incentive to invest” if farmers have the right to grow a third generation.
Sherry argued that when Monsanto sells its seed, it “authorizes the planting for one commercial crop and it authorizes the farmer to sell that as a commercial crop or to use it for any purpose other than replanting.” The self-replication of generation 2 is within Monsanto’s jurisdiction.
Walters responded by pointing out a distinction between self-replicating seed and self-replicating technologies. Walters argued, “This is not like software. [GM seed] is an invention that the only way to use the invention – now, repeat, the only way to use the invention – is to plant it and to grow more seeds.” Hence, Walters argues, if farmers are not able to plant the second generation, their right to use the very invention they bought is denied.
Justice Antonin Scalia responded: “What [Bowman] is prevented from doing is using the consequences of that [first] planting, the second-generation seeds, for another planting.”
Walters’ final statement: “But you’re saying that there’s no [patent] exhaustion in the progeny where [Bowman] owns that seed outright.” And so the argument ended.
While we await the court’s decision, we are left wondering if the deeper questions implicated in this case will emerge from the legal jargon at 1 First Street.
If the court rules that Monsanto owns generation 3 and consequently controls generation 2’s power to self-replicate, individual humans’ power to select our favorite potato, corn, or wheat varieties will be removed if for any reason those varieties contain a patented gene, whether we like the gene or not.
What would this mean for humanity’s co-evolution with the plant kingdom? Does co-evolution necessitate democratic gene selection? Do individual humans have a right to co-evolve with plants or is that just something we’ve been doing forever?
Note: After the writing of this column relevant federal legislation has been passed. On March 26, 2013 President Obama signed into law the HR 933 spending bill. The bill’s Farmer Assurance Provision removes federal courts’ authority to halt the planting and selling of genetically modified crops. The bill expires in six months, at which time the funding for the Provision will be up for renewal.
Copyright, Truthout. Reprinted with permission.
Leave a Reply
Articles On PRESS
PRESS: Republished press from our community wires.
- Jun 13 The Fight For Local Democracy in New York City
- May 25 Crown Heights Tenant Union: Building Power One Building at a Time in NYC
- May 25 Activists Occupy Shipping Container to Halt AIM Pipeline Construction in Upstate NY
- May 25 Barrington, NH votes 795 to 759 to Adopt Community Bill of Rights to Protect Waterways
- May 25 Revoking The Consent to be Governed
- Apr 25 Announcement of Nationally Coordinated Prisoner Workstoppage for Sept 9, 2016
- Apr 19 The Spirit of Occupy Lives on in France’s Emerging Direct Democracy Movement
- Apr 19 How Sanders Could Lay the Foundation for a Third US Political Party
- Apr 10 Some Possible Ideas for Going Forward
- Apr 7 Reclaiming Black Land in Grafton, New York
- Apr 7 Meet the Lead Organizer Behind the Upcoming Mass Sit-Ins to get Money out of Politics
- Mar 28 Dismantling Corporate Control Isn’t a Spectator Sport: An Interview With Thomas Linzey
- Mar 16 Preempting Trump: Barnstead, NH Adopts First-In-Nation Law Protecting Against Religious Persecution
- Mar 4 This New Era Of Unrest
- Mar 1 Washington State Supreme Court Guts Local Ballot Initiative Process
- Feb 9 Debating A ‘New’ Pan-European Anti-Austerity Movement
- Feb 9 How New York Stopped A Liquefied Natural Gas Project In Its Tracks
- Jan 28 Food, Land, and Freedom
- Jan 27 One Oregon Tribe’s Fight for Federal Recognition
- Jan 20 Worker, Civil and Environmental Rights as Legal Ends: Defying Commerce’s Logic
- Jan 20 Fast-Food Workers Plan Wave Of Strikes For 2016 Primaries
- Jan 18 Greece’s Varoufakis to Launch Pan-European Progressive Movement
- Jan 6 California’s Largest Tribe Passes First-In-Nation Enforceable Ban On GM-Salmon and GMOs
- Dec 29 The Leap Manifesto
- Dec 29 “People’s Injunction” Launched to Block Canadian Pipelines
- Dec 29 How Black Lives Matter Came Back Stronger After White Supremacist Attacks
- Dec 29 Can Local Law Enforcement Be Democratized By A People’s Movement?
- Dec 9 Preempting Democracy: What’s Not Being Voted on This November Is Sinister
- Dec 9 A Bill of Rights That Puts Workers Above Corporations
- Dec 9 Government and Gas Industry Team Up Against Local Fracking Ban Initiatives in Ohio
- Dec 9 Fighting Fossils, Letting Go of Regulatory Law
- Aug 26 In Colorado, A Revolutionary New Coalition Stands for Community Rights
- Aug 26 Climate Crisis Pits Local Governments Against 19th-Century Legal Doctrine
- Aug 26 Hundreds of Communities Are Building Legal Blockades to Fight Big Carbon
- Jul 21 Will Labor Go Local?
- Jul 20 Challenging Bedrock Law: “Dillon’s Rule” in Detroit and Beyond
- Jul 19 Defining a Federalist Approach to Immigration Reform
- Jul 18 Why Are Fracking Hopefuls Suing a County in New Mexico?
- Dec 8 Finally, The Court Case We’ve All Been Waiting For
- Nov 8 Ohio and Colorado Voters Adopt Community Bills of Rights
- Nov 8 Community Rights Organizer Sets Sights on Fracking in Southern Illinois
- Nov 8 Critical Issues Deserve a Higher Standard
- Nov 7 Indigenous Peoples Experience Of Climate Change And Efforts To Adapt (Video)
- Oct 8 Naomi Klein Addresses New ‘Mega Union’
- Oct 8 Disco may be the only way to stop Monsanto (Video)
- Oct 8 (Ohio) Frack-Backers Launch Preemptive Strikes against Democracy Attempt to Block Community Bills of Rights from Voters
- Oct 8 The California Domestic Workers Bill of Rights Speaks to the Need for Wise Immigration Reform
- Oct 8 Support Local Food Rights Will Not Be Deterred by Legislature’s Blow to Democracy
- Oct 8 Economic Sovereignty At Stake
- Oct 8 Sangerville, Maine Adopts Community Bill Of Rights Ordinance to Reject Transportation and Distribution Corridors
- Oct 8 Sacred Headwaters
- Oct 8 Oregon Communities Launch Statewide Network for Community Rights
- Sep 8 Bowling Green, OH Group Submits Bill of Rights Petition
- Sep 8 Judgment Day
- Sep 8 Judge Blocks Envision, SMAC Initiatives from Appearing on Ballot
- Sep 8 Why a Rights Based Ordinance In Nottingham, NH?
- Aug 8 What is the Local Food System Ordinance of Lane County?
- Aug 8 Lane County Initiative to Protect Local Farming Encounters Hurdle; Campaign Still Targeting May 2014 Election
- Aug 8 Benin: Local Knowledge And Adaptation To Climate Change In Ouémé Valley, Benin
- Aug 8 Local Food System Ordinance of Lane County, Oregon
- Jul 8 Envision Spokane Statement to Legal Action to Block the Community Bill of Rights from the Ballot
- Jul 8 Why does the Spokane City Council continue to ignore and distort the substance of the Spokane Community Bill of Rights?
- Jul 8 History of Efforts to Keep the Spokane Community Bill of Rights Initiative off the Ballot
- Jul 8 East Boulder County United Launches Campaign for the Lafayette Community Rights Act to Prohibit New Oil and Gas Extraction
- Jul 8 Benton County Community Group Files Petition for the Right to a Local, Sustainable Food System
- Jul 8 Rivers and Natural Ecosystems as Rights Bearing Subjects
- Jun 8 Caring for Home through Nature’s Rights
- Jun 8 From Field to Table: Rights for Workers in the Food Supply Chain
- Jun 8 Will Ohio Be Fracking’s Radioactive Dumping Ground?
- May 7 First County in U.S. Bans Fracking and all Hydrocarbon Extraction – Mora County, NM
- May 7 Self-Replication at Stake in Monsanto Patented Seed Case
- May 7 Guatemala: Mayan K’iché Environmental Sustainability As A Way Of Life
- May 7 Small Farms Fight Back: Food And Community Self-Governance
- May 7 State College Borough Gov Denies Pipeline Permit: Fight Isn’t Over
- May 7 Muzzling Scientists is an Assault on Democracy
- Apr 8 An Addition to the Climate Movement-Civil Disobedience Toolkit
- Apr 2 Thornton, New Hampshire Rejects Community Bill of Rights To Ban Land Acquisition for Unsustainable Energy Systems
- Apr 2 Grafton, New Hampshire Adopts Community Bill of Rights That Bans Land Acquisition for Unsustainable Energy Systems
- Apr 2 Highland Township Adopts Community Bill of Rights That Bans Toxic Injection Wells
- Apr 2 PSU Pipeline Violates Community Bill of Rights
- Jun 26 The United States Conference of Mayors Resolves that Corporations are not Natural Persons etc.
- Apr 30 Information and Documents concerning Oregon LNG
- Mar 9 1st Annual Read the Dirt Writing Competition!
- Feb 24 Oil Sands Pipelines, here?
- Feb 23 PRESS: Genetically Engineered Animals?
- Feb 23 PRESS: The 9th Annual Skagit Human Rights Festival March 2012
- Jan 27 Bellingham Rights-Based Ordinance Proposed to Stop Coal Trains
- Jan 26 PRESS: Occupy Seattle Joins in Solidarity with United Farm Workers
- Jan 20 Planning For a Future (Original)
- Jan 8 PRESS: Associated Students of Western Washington University Adopt Resolution Opposing Cherry Point Coal Terminal