Two cases involving the patenting of living organisms are now pending before the U.S. Supreme Court, and the outcomes do not look good. It appears that commoners who wish to use seeds, genes and other living things as a shared gift of nature will be cast out into the darkness once again. The Court seems poised to privilege the private control of lifeforms, providing yet another legal subsidy for the market order.
The seed case was brought by a 75-year-old farmer from Indiana who had bought commodity soybeans from a grain elevator. As described by the New York Times, an estimated 90 percent of all U.S. soybean crops are now grown from genetically modified Monsanto seeds resistant to the Roundup herbicide. Not surprisingly, many of the seeds that farmer Vernon Hugh Bowman bought contained second-generation versions of Monsanto seeds.
The problem is, Bowman inadvertently grew a new batch of GMO seeds without paying Monsanto or getting its authorization. Monsanto sued him, claiming that Bowman’s crops infringed Monsanto’s patent. Accepting the view that Monsanto’s patent let it control even second-generation seeds, a U.S. federal district court forced Bowman to pay an $84,000 fine.
In his legal filings, Bowman argues that once a patented object is sold, the seller loses control over how it can be used. This is a legal doctrine known as “patent exhaustion.” It’s similar in concept to the “first sale doctrine” in copyright law, which prohibits publishers and other copyright holders from charging licenses for library books or DVDs. If the scope of copyright or patent rights is too extensive, sellers can control too many “downstream” uses of the product, usually with harmful effects on competition, innovation and price. (Come to think of it, though, that is precisely what is also happening with e-books and e-journals: publishers are licensing content rather than selling it, giving them much greater control over downstream markets.)
Monsanto claims that it patent entitles it to prohibit the saving or sharing of its GMO seeds – which means, in essence, that the commons is illegal. This is a classic dynamic of enclosure – to privilege the market and criminalize commoning. After all, market players don’t want the commons to compete with its proprietary product. That’s why Microsoft lobbies state and national legislatures not to adopt open standards for government procurement of software. That’s why Hollywood and the record labels don’t like the sharing culture in music, video and writing. Commons dare to act as a check on concentrated market power.
Watch closely, however, because this is precisely how the historic traditions of the commons are swept away and then dropped down a memory hole. Once market logic and culture become normalized, the commons is made to appear aberrational and bizarre – precisely the claim that the U.S. Supreme Court is likely to make in the Monsanto case. “Seed sharing? Crazy! Thievery!” The forces of enclosure must insist that legitimate innovation be based on private property rights and market exchange; anything else, even sharing for subsistence, is declared suspect if not illegal.
There is the prior question of whether anyone should be morally entitled to own a living organism. I think not. But patent law has successfully pressed the claim that you are entitled to own a living organism, and exclude others from using it, so long as you can come up with an ingenious process, however modest or derivative, to colonize it or mimic it.
Monsanto argued in its court brief: “Investors are unlikely to make such investments [in biotechnology] if they cannot prevent purchasers of living organisms containing their invention from using them to produce unlimited copies.” That’s like saying authors will not be willing to write books unless they can control all downstream sales and uses of those books. Why should investment interests trump natural dynamics and millennia of agricultural tradition?
What’s so maddening about this case is that GMO patent-holders have utterly shifted the moral presumptions about what should be normal and proper. Increasingly, nature has no right to reproduce itself. The public has no general right to enjoy the gifts of nature. Farmers cannot necessarily continue their ancient practices of sharing seeds. And so the pernicious logic of marketization overwhelms the commons by enshrining a theory of value that deliberately ignores custom, public needs and natural processes.
It all started in 1980 with the Chakrabarty case, in which the U.S. Supreme Court allowed the patenting of a bacterium. That has led to the patenting of GMO seeds and cloned mice. Now, if Monsanto prevails, this latest ruling will likely privilege the privatization of live vaccines, cell lines, DNA used in medical research and treatments, and beyond.
There is a movement afoot in some farmer circles of creating a copyleft equivalent for seeds, so that farmers can cultivate their own agricultural equivalent of open-source crops. This may be the only solution: growing a new sector of open-source farming with explicit legal protections for sharing. A hack on the law, just like the General Public License for free software.
Take note that the arrival of Linux and other open source software programs did not destroy the proprietary tech sector. It invigorated it with fresh competition and innovation, and the tech world has never been healthier. For-profit tech businesses continue to thrive in fruitful synergy with open source software platforms. But Monsanto would rather be like Microsoft circa 1998, when it controlled 90 percent of all desktop computer operating systems. It’s far easier to be a bloated bully protected by monopoly patents and backdoor public subsidies than it is to really compete and innovate in sustainable, long-term ways.
The other patent case pending at the Supreme Court involves two “breast cancer susceptabilitiy genes” that Myriad Genetics of Utah owns. The patent has allowed Myriad to monopolize a diagnostic test for breast cancer – and to impede researchers from investigating breast cancer lest they run afoul of the patent.
I recently encountered one of the best accounts of the Myriad case around – a lengthy article, “Can They Patent Your Genes?” by Daniel Kevles, in the New York Review of Books. The scientific and legal details of the case are quite involved, but Kelves does a great job of explaining things.
He notes, for example, that case law has developed the idea that while nature itself can’t be owned, the processes or products of extracting, purifying or making useful some element of nature can be protected under patent law. So while a gene itself may not be literally patentable, a company that extracts a gene from a human body and then “chemically disentangles it from its chromosomal housing [to make] a new composition of matter,” in Kevles words, may be entitled to a patent. The idea is that the “inventor” is entitled to a private property right if it transforms a natural element in some novel, useful way. But if you take a yolk from an egg or gold from a stream bed, does that qualify? Kevles asks rhetorically. Invest millions of dollars in the process and become a big industry, and the chances are good that the U.S. Supreme Court will say yes.
Under the U.S. Constitution, patents are supposed to advance “the progress of science and the useful arts.” As these two cases illustration, they are doing precisely the opposite. Patents are building concentrated monopolies, thwarting competition, and subordinating natural processes to market alternatives that are lucrative and ecologically dubious. Embedded as it is in free-market economic theory and property rights, the patent system almost literally cannot comprehend the generative capacities of commons. The U.S. Supreme Court is likely to confirm this dismal truth very soon.