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Patents for Genetic Engineering Confuse & Miss the Point

Posted on 24 February 2013 by Jerry

Patent law covering genetically engineered foods and biotech technologies is in flux but only one outcome is on the side of history and humanity.  Courts are unsure about which products and technologies should be protected by patent.  A case filed by a 75 year old farmer against Monsanto is headed to the Supreme Court.  Another one rejected by a lower court, ratified by a federal appeals court and sent back for reconsideration by the Supreme Court is once again at the Supreme Court.

All of this controversy ignores the fundamental moral issues surrounding genetically altered foods.  In the book “Beyond Animal, Ego and Time”, an argument is made to recognize that life’s gene pool is its most commonly shared asset. The collective owner of the gene pool is life. Given its universally shared nature we should not allow any individual, corporation or government to own the genetics of any living organism that occurs naturally or any that has been genetically engineered or synthetically created.

The argument that genetically engineered products are not based on natural phenomena ignores that all of the processes genetic engineers and synthetic biologists are using were copied from bacteria and viruses which were the basis for these entire fields of science.  We must stop the profit motive as the major driver of such dangerous products.  Ownership of any life form should be illegal and no patent protection should be granted.  

That being the case, the behavior of Monsanto and the courts is instructive.  Monsanto has genetically engineered crops, in this case soybeans, to be resistant to harm from its own weed killing herbicide “Roundup”.  It has patented these and other seeds giving the farmer freedom to use as much of the weed killer as they please because it poses no risk to their genetically altered crop.  Monsanto requires a customer buy the seed from them each crop cycle.  If they plant the crop from seeds of plants grown in earlier seasons, they are still required to pay Monsanto even though the plants are from second generation seeds.  Obviously the weed killer is also supplied by Monsanto. 

At issue is a 75 year old farmer who is a good Monsanto customer for his main soybean crop but buys seed for a late season crop from a grain elevator known to have Monsanto’s genetically engineered seeds.  For this second late summer planting, which has greater risk because of the higher incidence of heat, drought and floods, the farmer has to plant twice as many seeds. 

He did not pay Monsanto for seed for the later crop arguing the seeds were from a grain elevator who licenses the seed from Monsanto.   In his view if Monsanto had an issue with anyone it was the grain elevator company.  Monsanto argued he was violating a contract he signs when he buys seed for his main crop.  The farmer said none of Monsanto contracts ever spoke about seed purchased from contracted third parties. 

Monsanto has a large staff whose sole purpose is to find cheating farmers who violate its patents and contract provisions.  Monsanto argues it is illegal to grow a crop using its patented technology without permission and payment.  The farmer argues that nature makes the plants whose seed was first bought and paid for by someone else.

The issue is how long and widely does Monsanto’s patent protection reach?  When referring to self replicating life forms, how many generations of the organism are included within the patent protection?  In addition, if the protected organism is purchased from a third party, who purchased it legally, what obligation extends to customers who buy from the third party?

Monsanto’s position in this lawsuit is suspect.  In a normal market, there are multiple avenues of distribution.  Buying a product from a third party who serves as the retailer does not involve legal obligation.  In addition, it could be argued these seeds, once again in a normal market, would not be so tightly controlled because they benefit another product from the same company, the herbicide product.  This should be analogous to a razor and razor blade market where the razor is sold for a very low price because the real profit is made on the blades.  This appears to be the same relationship between the seed and the herbicide.

The entire area of patent protection rightly remains contentious.  As an example, patents were not upheld in a recent case involving a San Diego company who patented a method of determining proper drug dosage.  In this case the Supreme Court ruled that no patent should have been issued because the way the test worked was based on the laws of nature.  In another recent case, the Supreme Court overturned patents that were granted to a Salt Lake City company.  Here it ruled that patents for naturally occurring genes should not be granted because there was no alteration by human beings and they were based once again on natural occurrences.

As previously stated, because all knowledge serving as the basis of genetic engineering was derived by study and copying of natural processes used by bacteria and viruses, these products should be considered based on natural occurrences and the laws of nature.  Unfortunately, our government, the courts, and these companies prefer to ignore where these sciences came from and the natural organisms on which they are based.

Use the following links to obtain further information:

http://www.nature.com/news/seed-patent-case-in-supreme-court-1.12445

http://www.nytimes.com/2013/02/16/business/supreme-court-to-hear-monsanto-seed-patent-case.html

http://www.nature.com/news/us-supreme-court-upends-diagnostics-parents-1.10270

http://www.nature.com/news/the-great-gene-patent-debate-1.11044

http://blogs.nature.com/news/2012/11/us-supreme-court-to-decide-on-gene-patents-in-myriad-case.html

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