humanitarians and profiteers alike – inuring to the benefit of those who can afford it while often debilitating those who cannot. It is an unsavory, albeit necessary reality of our industrialized world: where there exists a lucrative demand for improvement, one will find those eager to invest massive resources into the development of supply. And yet, it seems each side of the equation remains oblivious to the role that they themselves continue to play in this endless pursuit.In early 2013, the Supreme Court of the United States will hear oral arguments in a square-off between agricultural biotech giant Monsanto Company and an aging Indiana farmer. The case seeks to overturn a federal court ruling that Mr. Vernon Bowman violated Monsanto’s patent rights by harvesting an unauthorized second generation of genetically modified soybean seeds rather than purchase another batch of seeds directly from Monsanto. Mr. Bowman has argued that Monsanto exhausted its patent rights at the point of sale and, therefore, has no rights relative to soybean seeds harvested from an initial planting, despite the fact that these second generation seeds also carry the herbicidal resistance produced by Monsanto through a tremendous degree of research and development.
While Bowman’s argument sounds perfectly reasonable on its face, this case raises an entirely new realm of questions on so-called self-replicating technology. And while it is easy for proponents of free technology to lament the “corporate greed” standing in their way, these advocates are seldom the ones investing in the infrastructure and development necessary to bring such technology to life. Industrialized society runs on profit and, like it or not, we run on industrialized society.
Imagine the crippling effect on medical research should pharmaceutical companies be held to exhaust their product patents at the point of sale for their first bottle of painkiller, or advanced self-replicating nanotechnology patents deemed inapplicable to all but the primary generation of product. Incentivization for continued exploration would implode beneath the certainty of unrecouped development costs.
The argument that companies like Monsanto should seek profitability from the continued improvement of its product is juvenile and self-serving. When in the history of civilization has the taking by eminent domain encouraged the continuation of pioneering progress? While it is human nature to want something for nothing, the idealistic expectation of philanthropic support from privatized industry is an unsustainable concept, further weakened every time it is espoused by any individual who has not himself volunteered to continue his own career with no need for salary.
The impact of a Supreme Court ruling against Monsanto could send paralyzing shockwaves through the world of patent law and potentially undermine the existing ‘conditional sale doctrine’ which has already established precedent for patent protection well beyond a patent holder’s point of sale. We will have to see how the Supreme Court handles the matter before it, but the likelihood of significant change is slim. As much as we love to root for the underdog, the risks to private initiative are simply too high if self-replicating technologies are not sufficiently protected to justify the continued investment in the future.
But what about the other side of the Monsanto argument – the monopolization of certain crops through the use of heavily condemned “Terminator” technology that produces abundant yields and sterile second generation seeds? In countries like India, Monsanto cotton seed has led to the virtual extinction of other strains of cotton, leaving impoverished farmers at the mercy of a single source for their continued survival and requiring their annual purchase of expensive Monsanto seed.
At some point, the spectrum must shift from the protection of innovation to the defense of the public interest. Perhaps the disconnect lies in the murky area between the regulation of opportunistic corporate activity and the use of patent restrictions as a form of punishment.
Where other options exist, as they do for Mr. Bowman of Indiana, it only makes sense to reward the pursuit of progress. For at the end of the day, Mr. Bowman seeks the benefit of years of Monsanto research while preferring not to pay for it. Such litigation, however, should not distract us from the true danger of runaway companies like Monsanto and their frightening ability to change the face of biodiversity.
The world, as a whole, must remain diligent against the inherent indiscretion of profit, balancing the dangers of avarice with unfettered humanity. But we must stop viewing profit itself as the enemy. Moderation, not redistribution, is the key. Until we can understand that simple fact, all we will sow is resentment … and all we will reap is remorse.
