Patenting Seeds: The Question Not Taken

Shortly after the final lecture of the conference was completed, a woman approached me to ask “does Gustavus take money from Monsanto?” Is the college in the pay of the multinational agriculture biotechnology firm? She posed her sardonic question as offering the only explanation for the fact that I had not elected to read the question she’d posted at the final lecture—a question that asked Paul Thompson to comment on the Supreme Court’s judgment that have rendered life forms patentable. “It’s the most important issue facing our food system today, and it didn’t get discussed at this conference,” the woman said.

My interlocutor is right that conference speakers were largely silent on the patenting of life. It is an issue of unquestionably large importance to the food system.

Gustavus is not in the pay of Monsanto, however.

In the spirit of continuing the conversations begun by the conference, I’ve asked our speakers if they would comment on the patenting of seed. Any responses I receive will be posted on the blog.

In the meantime, here is a bit of background information about the issues to which the woman was referring: a thumbnail sketch of  the relevant Supreme Court decisions, and links to sources of more information, representing a sampling of views from various places in the debate.

Background

According to the Center for Rural Affairs, “On December 10, 2001, the U.S. Supreme Court issued its opinion in J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 US 124 (2001), a case that dealt with questions concerning the patenting of plants and seed. The Supreme Court held for the general assertion that all life forms [including seeds, plants—conventional and GM—and bacteria] are patentable under current U.S. law….

“A logical extension of the Supreme Court decision on patenting life forms, absent development of a stronger statute by Congress, is that all livestock with various genetic markers would be patentable. If livestock patents become the norm, producers might be forced to pay a fee for every offspring produced with the patented genes or pay for the ability to have patented livestock produce offspring.” (Center for Rural Affairs, http://www.cfra.org/node/70).

The company most associated with the patenting of seeds is Monsanto, and in January of 2008, “the U.S. Supreme Court declined to hear a case involving Monsanto’s dispute with a farmer over the famer’s use of Monsanto’s patented Roundup Ready soybean seed.  Contrary to press reports and Monsanto’s own statements concerning the case, the court did not rule in Monsanto’s favor – they simply refused to hear the appeal.  The Supreme Court did not validate Monsanto’s position taken in the case” (Iowa State Center for Agricultural Law and Taxation, http://www.calt.iastate.edu/soybean.html). A lower court had indeed ruled for Monsanto, asserting that first and second generation seeds were virtually identical, so that a patent on one generation held over into the next generation.

U.S. Supreme Court cases:

Monsanto Co. v. McFarling, 488 F.3d 973 (Fed. Cir. 2007), cert. den., No. 07-241, 2008 U.S. LEXIS 73 (U.S. Jan. 7, 2008).

J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534 US 124 (2001)

Canada Supreme Court case:

Monsanto Canada Inc. v. Schmeiser [2004] 1 S.C.R. 902, 2004 SCC 34

Nobel lecturers on seed patenting

Two of the speakers at the conference, in particular, have a history of writing and/or working on the patenting of life forms, including seed.

About Fowler:

• “In Seeds We Trust,” Veronique Greenwood. (http://veroniquegreenwood.com/?p=90)
• “Sowing for the Apocalypse,” John Seabrook (http://www.newyorker.com/reporting/2007/08/27/070827fa_fact_seabrook)

By Thompson:

• “The Environmental Ethics Case for Crop Biotechnology: Putting Science Back into Environmental Practice,” in Moral and Political Reasoning in Environmental Practice, ed. Andrew Light and Avner De-Shalit (Cambridge: MIT Press, 2003).
• “Can Agricultural Biotechnology Help the Poor?” http://www.scienceprogress.org/2009/06/ag-biotech-thompson/
• Food Biotechnology in Ethical Perspective
• “Conceptions of Property and Biotechnology” BioScience 45 (April 1995).

Some commentary on the patenting of seeds, representing a range of interests and opinions:

• “How Patents Grew over Time to Include Living Organisms” (http://cookingupastory.com/patent-law-how-patents-grew-over-time-to-include-living-organisms)
• “Intellectual property protection for plant innovation: Unresolved issues after J.E.M. v. Pioneer.” (http://www.bioethics.iastate.edu/retreat_2005/Janis.pdf
• “Life Form Patenting and Family-Scale Agriculture: Implications and Recommendations” (Center for Rural Affairs http://www.cfra.org/node/70)
• “Why Does Monsanto Patent Seed?”a five-part series from Monsanto (http://www.monsanto.com/newsviews/Pages/Why-Does-Monsanto-Patent-Seeds.aspx)
• Editorial: “J.M. Ag Supply v. Pioneer Hi-Bred International: Corporate Seed Patents Destroys Farmers’ Customary Right to Save Seed” (Vermont Journal of Environmental Law, http://www.vjel.org/editorials/ED10028.html)