By Taylor Reid
I believe in the basic tenets of our capitalist economic system with some measure of control – against monopolies or wrongdoing. I believe that when someone works hard enough, or even when they’re simply lucky enough to be the first to stumble on some novel idea, that they should have some rights to control that idea, and generate money from it if they want. That’s what promotes innovation. And there have been many very good innovations over the years, innovations that have improved the quality of our lives.
But I also believe we have gone wrong, dangerously wrong, by allowing the patenting of certain living organisms and their component parts in agriculture, something that the Supreme Court has consistently upheld. The following is a brief history of the issue:
Stein (2005)1 tracks this development with respect to seeds, beginning with the U.S. Plant Patent Act of 1930, continuing with the 1970 Plant Variety Protection Act, and moving into the judicial system starting with the 1980 Supreme Court decision Diamond v. Chakrabarty2, which laid the legal groundwork for the “privatization and commodification” of the genetics of seeds. In 1985 Ex Parte Hibberd extended property rights to the individual components of and organism, such as genetic information. Asgrow Seed v. Winterboer, in 1995 continued the trend by denying the rights of farmers to save and resell patented seed products. The next step was J.E.M. AG Supply v. Pioneer Hi-Bred International. Pioneer Hi-Bred, a large seed company, sued a small Iowa seed supply company, Farm Advantage, for violating patents on hybrid corn seed, affirming that newly developed plant breeds are covered by expansive utility patents. The cumulative effect of this legislation was to concentrate corporate power in the seed industry and encourage massive consolidation. In the past several decades, the global seed industry has grown significantly and is now worth an estimated 15 billion dollars.
Now a few companies – chemical companies almost exclusively – have gained unprecedented control over the global seed industry through the patent process, and by buying up smaller seed companies. For a great and rather chilling overview of this process, see Phil Howard’s article Visualizing Consolidation in the Global Seed Industry: 1996-2008 published in the Journal Sustainability (2009: volume 1, issue 4, pages 1266-1287).
It certainly seems ironic today, but among the fundamental concepts enshrined in the US Constitution was a provision which might arguably be credited as the most significant factor in undermining the much celebrated ideals of agrarian and egalitarian thinkers such as Thomas Jefferson and Benjamin Franklin. The consequences of Article 8.8 may not have been predicted in the late 1700’s, but as Busch3 points out, congressional power to “promote the Progress of Science…by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” would have extraordinary implications on the direction of American society. It is difficult to blame these idealistic pioneers for failing to recognize the fallacy inherent in a notion of government as an arbiter of economic justice. As Warren Samuels emphasizes, American rhetorical and cultural ideology continues to perpetuate an unfounded belief in the separation and exclusivity of government and economy4. What Samuels calls “the legal-economic nexus”, is the seldom recognized phenomenon by which “…both polity and economy are continuously and simultaneously (re)formed in a manner that negates any conception of their independent self-subsistence.”
The result in agriculture has been the unprecedented control over the basic components needed to produce many of our most important agricultural crops through the process of consolidation and patenting, much of it based on the process of genetic modification. There is also an unhealthy co-mingling of the US government (charged with regulating patents)5, public universities (where many of these patents are developed)6, and private companies in allocating control over the basis (seeds, plants, and animals) for many of our most important food resources. The argument I’m putting forward here is not about the ethical or even the ecological implications of genetic modification (that’s a whole different story). I simply suggest that the seed industry has become too concentrated, too powerful, and that there need to be limits on the patenting of life and the monopolistic control of the seed industry by biotechnology/chemical companies.
1 Stein, Haley. 2005. “Intellectual Property and Genetically Modified Seeds: The United States, Trade, and the Developing World.” Northwestern Jorunal of Technology and Intellectual Property 3:159-178.
2 1980. “DIAMOND, COMMISSIONER OF PATENTS AND TRADEMARKS v. CHAKRABARTY. CERTIORARI TO THE UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS, 447 U.S. 303.” United States Supreme Court.
3 Busch, Lawrence. 2000. The Eclipse of Morality: Science, State, and Market. New York: Aldine De Gruyter.
4 Samuels, Warren. 1989. “The Legal-Economic Nexus.” George Washington Law Review 57:1556-1578.
5 Pew Initiative on Food and Biotechnology. 2001. Guide to U.S. Regulation of Agricultural Biotechnology Products. Report Available at: http://www.pewtrusts.org/uploadedFiles/wwwpewtrustsorg/Reports/Food_and_Biotechnology/hhs_biotech_0901.pdf.
6 Press, Eyal, and Jennifer Washburn. 2000. “The Kept University.” The Atlantic Monthly 285:39-54.; Etzkowitz, Henry, Andrew Webster, Christiane Gebhardt, and Branca Regina Cantisano Terra. 2000. “The Future of the University and the University of the Future: Evolution of Ivory Tower to Entrepreneurial Paradigm.” Research Policy 29:313-330.; Krimsky, Sheldon, James G. Ennis, and Robert Weissman. 1991. “Academic-Corporate Ties in Biotechnology: A Quantitative Study.” Science, Technology, & Human Values 16:275-287.