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.)