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.