I’m always interested in the way creatures find to mark their territory, the variations in what can be considered grounds for competition. Physically marking territory for hunting by using scents; territory for mating by using struts, plumage or howls; fencing and barbed wire for farming. Staking territory to gain an advantage is probably almost as old as life.
When it comes to humans, we have invented systems for staking out the territory not just of where we are, but what we think. We call our thoughts intellectual property and we claim that property using patent and copyright law.
There’s a discussion over territory that’s both physical and intellectual that’s going on right now in the U.S. Supreme Court. On one side is a 75-year-old Indiana farmer, Vernon Hugh Bowman, who planted soybeans he purchased from the Monsanto company. They were Roundup Ready soybeans, which are engineered to be resistant to weedkiller. In the 15 years since its introduction, the Roundup system has grown to comprise 90% of all soy grown on U.S. soil.
When farmers buy Roundup Ready seeds, they sign agreements that they will not plant the seeds from the original plant for a new crop. The 2nd generation seeds contain the same engineering as the parent seeds, and each plant provides up to 80 new seeds. Most farmers comply. Mr. Bowman did not. He planted the 2nd generation seeds, and when Monsanto sued him for breach of contract, he went to court. And lost. He appealed, and lost again. Now the case is in front of the Supreme Court, and Mr. Bowman is appealing with the assistance of a large lawyerly contingent.
Their argument is that the Monsanto patent only extends as far as the seed generation that was sold and planted. Farmers have been saving seeds from one year to replant the next for millennia – it’s called agriculture. To limit the right to do so is to limit human culture by limiting choices to those products made available by a very few companies.
Monsanto doesn’t agree. The company spends vast amounts of money on research and development. If it can’t recoup that investment by selling its products, there is little incentive to develop new and useful technologies. Many business leaders and economists agree. “Our case is the template for a broader discussion,” said David Snively, Monsanto’s general counsel. “This is just really about how patent law concepts apply to tomorrow’s technologies.”
The United States has only allowed the patenting of living organisms since 1980 (Diamond v. Chakrabarty). As one article sums it up:
The difference here, some attorneys say, is that the patented item is a product of nature that regenerates on its own.
“Are they going to take nature into account? Are they going to take into account that this is what beans do?” asked Yvette Liebesman, a law professor at St. Louis University. “You can patent anything under the sun created by a human. If a plant is doing what plants do, is that something that humans have done?”
Monsanto has an answer for that.
“This is not just a seed,” Snively said, “and to suggest that plants just grow themselves is preposterous.”
There have been calls recently to overhaul patent law, claims that it stifles real innovation and productivity. This is a topic I’ll explore later with regard to green issues.
For now, I will be watching Mr. Bowman and Monsanto use whatever means at their disposal to stake out their respective territories. It’s what we do.