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Corporate space and the Monsanto case

Stephen Menendian, assistant director, Othering & Belonging Institute at UC Berkeley | February 22, 2013

The Supreme Court is currently reviewing a lawsuit by the agri-business giant Monsanto against an Indiana farmer.  In Bowman v. Monsanto, 75-year old Vernon Hugh Bowman has petitioned the Supreme Court to review Monsanto’s lawsuit against him for purchasing and planting seeds that apparently contained Monsanto’s patent protected anti-herbicide genome in them.  Bowman purchased the soybean seeds from a grain elevator and planted late in the season as a backup crop (he had already planted a crop of seeds purchased directly from Monsanto for his early season harvest) rather than for livestock feed or some other purpose.

The issues involved in this case are elemental to life.   This case concerns the ability to patent life and to control the sources of life, such as the ability to produce food.   Monsanto claims that Bowman’s planting of seeds from plants he grew infringed their patent.  Bowman argues that the patent rights must have limits, especially with respect to life (which Monsanto calls “self-replicating technologies,” which are different from software or other patented technology),  and especially when the private sector is, essentially, asserting or threatening monopoly control over a critical part of our food supply.

graphic of public and private spheres

In our article, “Beyond Public/Private: Understanding Excessive Corporate Prerogatives,” Haas Institute Executive Director john powell and I argue that the public/private distinction obscures meaningful differences between private actors, generating and insulating corporate prerogatives in the process, and that excessive corporate power threatens individual liberty and private space.   This case vividly illustrates these ideas.

While both are ostensibly private actors, multi-national giant Monsanto can hardly be considered the same class as small farmer Hugh Bowman.  Monsanto controls 27% of all genetically modified/engineered seeds sold worldwide (as of 2009).  The public/private dichotomy obscures the power and production differentials of these two parties.

Monsanto’s claim to own the rights to Vernon Bowman’s legally authorized purchase of soybean seeds from a grain elevator raises serious questions about not only corporate control over the food supply, but the existence of private space and individual liberty.   As we assert in our article, “[t]he expansion of corporate space is a threat to both private and public space. […] Private space is conceived largely as being free from the coercive, concentrated power of the state.  Yet what replaces the state in corporate space is the coercive, concentrated power of the corporation.”   That’s exactly what Monsanto’s suit does.

painting of founding fathers

“Declaration of Independence,” by John Trumbull

For millennia, farmers have enjoyed the rights to plant seeds and grow crops.  Fewer and fewer major corporations increasing own patent rights to these genes.  In fact, three agrichemical companies now control 53 percent of the global commercial seek market, the first link in the food chain.  If corporations can splice a single gene trait into a seed genome, they can potentially claim patent rights to those sources of life.   This is a significant difference from other forms of technology like software or industrial products.

Consider what the founding fathers might have made of Monsanto’s claims.  Washington, Jefferson, and Madison were all Virginia planters (our first President, author of the Declaration of Independence, and author of the Constitution respectively).  They feared not merely the concentration of political power, which they rebelled against and labeled tyranny, but they also feared the concentration of economic power.

For two centuries, Congress refused to permit patents on staple crops.  This was based not only the common sense convictions of our nation’s founders, but also rooted in a view of individual freedom.

As we wrote in our article, “Thomas Jefferson firmly believed that economic independence was a foundation of individual freedom, expressed in the ideal of the independent farmer.”  That independence is threatened now by Monsanto’s claims, with national and global repercussions.

Comments to “Corporate space and the Monsanto case

  1. The American people have lost their control over agriculture to the Big-6 Chemical/Biotech Transnational Corporations. Mandatory labeling of genetically engineered foods (GMO’s) would help to restore that control to the people (all of us) where it belongs. Labels are powerful – they allow all consumers to have a voice in how our food is grown and processed.

  2. The “ability to patent life”? That’s more of a bumpersticker phrase than an accurate description of what is at stake in the case currently before the Supreme Court. Intellectual property is the issue, and I doubt that Monsanto will lose: more than five of the justices, I wager, are sensible enough to refuse to throw a hurdle before our scientists, engineers, and entrepreneurs. If the verdict is lopsided (as I hope it will be), I trust that you will re-examine the case from the point of view of a corporation that has created a new technology and hopes to reap a reward from its investment. Even mega-businesses deserve fair treatment.

  3. Well, what’s your proposed alternative?

    In this case, it appears likely that if the court were to find that Monsanto’s patent rights are extinguished after the first sale, their patent rights are effectively completely extinguished. The RR-resistant seeds breed true, so anyone can set up a seed company to buy from current soy farmers (growing RR soy) and resell them to the same or other farmers. This “washing off” of the contractual patent protection by resale (recall that currently farmers must agree not to replant the RR seeds derived from seeds obtained from Monsanto) would completely negate the Monsanto patents. Whatever you might think of all the patent trollery going on in the US these days, this looks much more like a straightforward case of a contract violation by the farmer.

    You appear to be suggesting that companies that develop new living organisms should not be allowed patent protection. Perhaps you have some values-based grounds (i.e., moral, as opposed to science-based or economic) for asserting that, but that’s an argument you need to make, rather than just insinuate. Referring to the beliefs of the “founding fathers” doesn’t really help to clarify the issues. And of course the writers of the constitution thought patents were sufficiently important to the welfare of the country to explicitly call them out.

    The obvious counterargument on plant patents is that all of the value creation from firms engaged in creating new breeds would be lost in one stroke if Monsanto’s patent rights are negated here. There are, no doubt, some who think this would be a good thing, and that we should revert to a pre-industrial pastoral eden, eating only seasonal foods grown within 100 miles of home.

    They seem to forget that a majority of that population lived on farms and worked in agriculture, and was far more susceptible than us to crop failure and hunger. And never mind that only a few upper class people had the luxury to think of becoming a university professor.

  4. So in a warming world with serious drought implications, you don’t want to have Monsanto and their competitors have an incentive to produce, for example, drought resistant seeds?

    Some sort of a reasonable compromise would seem to be in order, as flat denying this would raise havoc for areas like software.

    Drugs enhance life. Why not a similar limited patent timeframe like for drugs as a compromise — at least until society gets time to figure out a better long term solution that doesn’t completely stifle seed innovation at the genetic level?

    Disclosure: I’m a moderate libertarian without a strong left or right wing dog in this fight, but who wants to be realistic about using innovation to combat growing food supply threats.

  5. Nicely written! I find this case scary. My understanding is that Monsanto requires farmers to sign contracts agreeing that they will not plant the seeds produced by the plants grown with the patented seeds. This tells me that not even Monsanto believes that their patent could or should prevent farmers from doing that. The farmer did not even breach the contract because planted seeds he bought from the grain elevator.

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