Bowman v. Monsanto – Not a matter of “Big versus small”
“Michigan Farm News” is a publication of the Michigan Farm Bureau. In its 15 March
2013 issue Mr. Paul W. Jackson published an editorial article titled, “Big versus small at
core of Supreme Court case” referring to Bowman v. Monsanto. The case was heard by
the high court on 19 February 2013 and centers on the question of “patent exhaustion.”
Essentially, when has a patent holder’s right to profit from their original, non-obvious
solution to some situation been “paid in full?”
Modifying soybean genes to elicit an unnatural expression of tolerance to Monsanto’s
glyphosate herbicide is the underlying patent. “Biotech” is the benign media label in
wide use and protecting their “agricultural technology” has been the subject of many
legal enforcement actions by Monsanto.
“Technological” change has affected not only the way seeds are sold and saved it
has also provided the opportunity for anyone with an internet connection to actually listen
to the proceedings of Supreme Court cases. I would suggest that Mr. Jackson take
advantage of that opportunity and listen to that court’s hearing of the Bowman v.
If he would listen he might discover that is neither the “core”
of the case nor is it part of any of the parties’ arguments. Having conjured up a “David v.
Goliath” view of the case, Mr. Jackson takes his licks at what he might term anti-biotech
Luddites and ignores the questions that aren’t, but desperately need to be addressed
regarding “biotech” and “patenting” seeds. Apparently it is enough for him to believe that
Monsanto is the aggrieved party and deserves to prevail.
Jackson’s invented story mostly tries to justify Monsanto’s “research and
development” of soybean genetic manipulation as the savior of hungry people around the
world. If the corporation doesn’t get their return on investment, one that “takes a bigger
cut from the farmer, perhaps, but…leaves enough on the table…for the farmer to use it,”
humanity will lose “the race to feed nine billion people.”
Torturing the facts as he has and in trying to apply CPR to the bankrupt
mythology of American farmers “feeding the world,” Mr. Jackson arrives at this
astounding inverted conclusion: “Wisdom…says it’s not wise to bite the hand that feeds
you, even if it is a hand as big as Monsanto’s.” Mr. Jackson’s “wisdom” concludes that
Monsanto feeds the farmer.
I see two questions that must be investigated and argued regarding direct genetic
modification of seeds and the profits to be garnered from their commercialization. The
first is a question of law. Monsanto’s lawyer Mr. Waxman stated to the court that the
USDA granted a license to Monsanto for their “transformation event,” modifying the
genetic structure of a soybean plant cell. He stated, “It’s illegal to do it unless you get a
government license to do it.”
Here’s the question: does the USDA have authority to grant such a license? If
they do, Congress must have enacted a statute to convey such authority to them because
they cannot simply claim that authority by fiat. Congressional authority resides in our
Constitution where the powers delegated from the People to Congress are specified. Does
the Constitution give authority to Congress to decide to modify the genetic structure of
anything? It is a most important question, certainly more important than deciding that the
sale of alcoholic beverages should be outlawed and that required a Constitutional
amendment; one which was subsequently repealed.
The second question has to do with “patenting” seeds and whether such an idea even
passes the “sniff” test. Patent rights make sense to me when they are human effort applied
in original, non-obvious solutions serving human needs or interests. Monsanto, perhaps
contrary to popular belief, did not invent seeds. The Creator of this world invented seeds.
Fortunately He has not, so far, legally asserted His patent rights, although wisdom
recommends 10%. Also attributed to His hand are the genes as well as the genetic
“code,” which, although “mapped” by human investigations, are not even half understood
by those who play Tinkertoy with those structures in their efforts to “make things better”
or, more crassly, simply to “make money.”
In his first volume of How Plants Are Trained To Work For Man, Luther Burbank
pointed out that “The seed is but a bundle of tendencies.
“When those tendencies have been nicely balanced by a long continuation of
unchanging environment, the offspring is likely to resemble the parent.
“But when, through a change of environment, or through crossing, that balance is
disturbed, no man can predict the outcome.
“So when such a seed is planted, no man can be sure whether the twentiethcentury
tendencies will predominate or whether long-forgotten tendencies may suddenly
spring into prominence and carry the plant back to a bygone age, in some of its
[pp.105-6; © 1921. P.F. Collier & Son Co., New York]
Our Creator has spent many, many more years developing appropriate plants for
human and animal nutrition than have the lab techs with their “gene guns.” Humans have
outpaced His natural process by selective breeding, novel cross-pollination and
hybridization of all sorts of plants. Burbank’s approach was based on understanding the
process of the plants and their seeds and their history of interaction with their
environment, not simply manipulating their genetic chemistry and structure to show our
dominance. Our reach exceeds our grasp and yet we have allowed commercial property
rights to prevail over fundamental natural interests.
My preference for dinner continues to be as close to the natural and as far from
the Tinkertoy as I can have it. The point here is that such a preference is ever less
available through no choice of mine. Diminishing choices are dictated by the
commercialization of “patent rights” bestowed, in my view unlawfully, on Monsanto by a
government that was created to protect my individual liberties.
These questions are not involved in the Bowman v. Monsanto case as it was
argued before the Supreme Court. That is disappointing but apparently Mr. Jackson was
more interested in defending Monsanto’s demigod position “feeding farmers” than he
was in finding the more important questions human beings are staring at on their dinner
President, National Organization for Raw Materials (NORM)