A Rough Patch: Sorting Out GMO Patents, One Seed at a Time
I am not a farmer. I have never sowed soil, have never bought seeds, or grown crops, or made a profit from the fruits of the earth. Yet, I am deeply concerned by the state of affairs of the farming world, and the challenges presented by ever advancing agricultural technology. I refer to the dreaded genetically modified organism (GMO), the bane of any anti-vaxxer’s existence, given that scientists are clearly trying to create a new world order by infecting people with things that are “good for them” and “save people’s lives” and might even “end world hunger.” The pain, the terror!
All jokes aside, I feel as though it is important to state from the outset that though I am personally in favor of technological progress, this article is not an attempt to justify or assess the ethical implications of GMOs. Instead, I will focus on a different source of agricultural tension: GMO patents. On the surface, it may appear as though the fruits of scientific inquiry should clearly and obviously be patentable. Drugs are patentable. Inventions are patentable. Why should agriculture companies not be allowed to patent their work, in order to ensure proper reparations for years of research and development?
Despite the apparent simplicity of the comparison, there are some issues with the practical applications of patenting in this way, with negative effects that are quite clearer in the medical realm than in the agriculture realm, at least to date. Far too common in the media today are outcries from ailing patients and enraged healthcare recipients who are forced to pay for, or who are priced out of paying for, vital drugs and other pharmaceuticals that can be the difference between life and death (1). As pharmaceuticals grow in power and influence, they are even beginning to purchase small, inexpensive drugs developed and marketed by small drug companies, and are then free to “jack up the prices,” given their monopoly over the drug (1). Given the size of the major drug companies, and the monopolies that have influenced rising drug pricing, it may be wise to question the system that is in place, and not simply use other aspects of the patenting law to justify the current state of the GMO patent landscape (2). It may even be wise to question the use of precedent in combating ethical dilemmas. Given enough time, agricultural monopolies may come to dominate small farmer interests, even when individual farmers no longer desire to purchase specific, genetically-modified crops. It appears as though a simple comparison to, and extrapolation from, previous patent laws runs the risk of endangering the freedom of a subset of workers, who also happen to be a vital component of the food-infrastructure of this country. I will lay this question of rights and freedoms on the table, and address them at the end of the article.
These monopoly concerns relate to the additional problem of research impediments. Patents, by their very nature, impede further research on the patented material by anyone except those who received the patent. While yes, it would seem that the company that creates something, or creates a GMO in this case, should be the primary force behind further research and product maintenance, it has been documented that big agriculture companies, including Monsanto, make agreements with big research institutions to allow them to do independent research (2). This backdoor system, which relies on agreement instead of free public access to all, opens the door to a host of biases that could easily be prevented by a delineation between production/sales patents and research patents. To me, it actually seems to muddy the waters more by having a single patent system that then requires companies to grant permission for research.
A recent New York Times article serves to highlight a darker side of this Big Agriculture-Academia relationship (3). Scientists who are recruited to conduct research trials for agriculture companies must answer to two conflicting authorities. On the one hand, they must face the CEOs signing the paycheck when research findings conflict with a company’s prerogatives. On the other, they must face the understandable skepticism of their colleagues and other invested stakeholders, including the consumers of products sprayed with questionable pesticides. I call this skepticism understandable because of the less-than-spotless history of corrupt research under the purview of Big Tobacco (4). Thus, on a very practical level, a bit of skepticism at the hands of Big Agriculture may be in order, not in a way that condemns these companies and stifles agricultural progress, but meaning that these patent issues should be rigorously assessed and addressed head-on, and not simply handed off to precedent, given the potential for downstream effects that are not immediately apparent.
This may all sound frivolous to the seasoned GMO-patent proponents, who seem to be primarily concerned with the recent showdowns between farmers and larger agriculture companies. Monsanto has been the plaintiff in a number of high-profile court cases, including one case in particular, Bowman vs. Monsanto, which reached the Supreme Court (5). At the end of the day, ethics and research progress aside, there is very little denying that a company that develops a product should reap the financial reward that comes with it. I am in no way trying to argue that companies like Monsanto should not be able to make a profit on their genetically modified seeds, considering that the agriculture patents that apply to GMOs only last twenty years (6). Regardless, there is something strange about the structure of these patents. Big agriculture firms like Monsanto require that farmers sign a peculiar agreement. When a farmer purchases GMO seeds, they agree to only plant the seeds once, to not save any for a second harvest or for future harvests, and so are obligated to purchase new seeds each year.
Something about this doesn't sit right with me. For one thing, this simply is not how other patentable goods work. Take a DVD for example. Though I am not allowed to burn a copy of a DVD and resell it to someone else, I am surely allowed to watch the contents of the DVD for as long as I desire (or until the DVD breaks). Unlike a DVD, wherein the purpose is visual enjoyment, the purpose of seeds, is to grow them, and make a profit. If the cases are analogous in any way, it would appear as though, so long as only the purchaser of the seeds is benefiting, that she should be able to use the bunch of seeds he/she bought until they stop working. Yet that is not how the system works. Of course, when a farmer signs an agreement like this, they are contractually obligated to abide by it, but the mere existence of such a request on the part of the agriculture companies, though not surprising, seems to me to be overstepping economic bounds. This is accompanied by the fact that we live in a world with an ever-growing population and an ever-diminishing food supply. Therefore, it seems rather wasteful for companies to not allow the reuse of seeds by the farmer who initially purchased, even if for a few (greater than one) harvests.
These considerations beg an overarching question about rights. On the one hand, it appears as though Big Agriculture firms have a right to their product. But this particular notion of a right may very well stem from precedent that need not be followed. What if, instead, the rights of farmers to cultivate their land, using any means available to them, trump the rights of the agriculture companies? And what, if anything, must be considered in regards to the rights of the stakeholders downstream of these two primary players? There are people living in destitute poverty who could benefit from stronger harvests and crop surpluses. There are, of course, the environmental rights and implications of GMO reuse to be considered. And then there is the ultimate question, which seems, at times, like a never-ending wrestling match, as to which theory of justice should ultimately guide the systems and institutions that make up our lives.
Thus, I do not offer a solution to the problems posed by GMO patenting. What I do offer is an opinion about the importance of ethical consideration and debate, even in the face of well-established precedent. I may not be a farmer, but I wholeheartedly believe that the farmers must have a chance to tell their side of the story, before a more concrete path is chosen.
Jonathan D. Rockoff and Ed Silverman. “Pharmaceutical Companies Buy Rivals’ Drugs, Then Jack Up the Prices” The Wall Street Journal. http://www.wsj.com/articles/pharmaceutical-companies-buy-rivals-drugs-then-jack-up-the-prices-1430096431
Tamar Haspel. “Unearthed: Are Patents the Problem.” The Washington Post. https://www.washingtonpost.com/lifestyle/food/unearthed-are-patents-the-problem/2014/09/28/9bd5ca90-4440-11e4-9a15-137aa0153527_story.html?utm_term=.68b69d6759cc
Danny Hakim. “Scientists Loved and Loathed by an Agrochemical Giant. The New York Times. http://www.nytimes.com/2016/12/31/business/scientists-loved-and-loathed-by-syngenta-an-agrochemical-giant.html?rref=collection%2Fsectioncollection%2Fscience&action=click&contentCollection=science®ion=rank&module=package&version=highlights&contentPlacement=5&pgtype=sectionfront&_r=0
Brownell, Kelly D., and Kenneth E. Warner. "The perils of ignoring history: Big Tobacco played dirty and millions died. How similar is Big Food?." Milbank Quarterly 87, no. 1 (2009): 259-294.
Bowman vs. Monsanto Co. et al. 11-796. U.S. 1-12 (2012).
Wen Zhou. “The Patent Landscape of Genetically Modified Organisms” Harvard University Graduate School of Arts and Sciences. http://sitn.hms.harvard.edu/flash/2015/the-patent-landscape-of-genetically-modified-organisms/