During last week’s oral testimonies before the United States Supreme Court, a 75-year-old soybean farmer from Indiana faced down Monsanto, as he challenged the biotech giant’s aggressive and frequently criticised pursuit of patent infringement cases.
According to court reports, the panel of judges was less than amenable to farmer Vernon Hugh Bowman’s argument that the purview of Monsanto’s patent ends once its seeds have yielded their first generation of a crop.
Monsanto sees it differently, arguing that it must be able to prevent farmers from using seeds obtained from subsequent generations of plants.
That the Supreme Court would resist Bowman’s argument should come as no surprise. After all it was the Supreme Court that, in 1985, granted seed companies the right to limit farmers’ ability to save the seeds the companies had patented.
Chief Justice John Roberts Jr impressed upon the court his predisposition toward the case when he asked the following question:
Why in the world… would anybody spend any money to try to improve the seed if, as soon as they sold the first one, anybody could grow more and have as many of those seeds as they want?
Since Monsanto has spent more money on buying up its competitors than researching new technology, one might question Monsanto’s genuine dedication to “improving seeds”. In answering that question, it is helpful to review the very recent history that has seen the gradual but extraordinary transfer of control of seeds into the hands of just a few companies.
Monopoly control over seeds
A recent report published by the Centre for Food Safety and Save Our Seeds, Seed Giants vs US Farmers, emphasises that since the late 18th century, the US government resisted lobbying efforts to patent seeds while the USDA and private farmers developed plant species through backcrossing, hybridisation and other breeding processes.
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Contrary to the assumptions that appear to inform Justice Roberts confounded inquiry, human beings can make advancement – in agriculture and other endeavours – without the lure of patents.
While this may seem a radical notion to today’s business-high Supreme Court, acknowledging this fact has not always been so difficult.
Plant patents were first granted exclusively to those that were reproduced asexually, that is, without seeds. According to Seed Giants vs US Farmers:
This reflected the… conviction that private sector entities should not be entrusted with monopoly control over the very source of our food supply.
When Congress finally did allow a form of patenting for seed-produced crops, it specified that farmers would be allowed to save seeds. Furthermore, Congress stipulated that patented seeds would be available to researchers.
However, those final protections were entirely eroded in 1985, when the Supreme Court determined that sexually reproducing plants were eligible for utility patents, “which allow the corporate patent holders to deny farmers the right to save and replant seeds and exclude others from using any patented variety for research”.
The 1985 Supreme Court decision triggered a consolidation of ownership of seeds that continues to expand to this day. According to Seed Giants vs US Farmers, 53 percent of the global seed market is owned by three corporations: Monsanto, DuPont and Syngenta.
But what’s really on trial in the Supreme Court is not the value of a patent, but rather the miraculous thing called life, seen in plants’ ability to reproduce themselves naturally in perpetuity – and whether or not Monsanto can claim ownership of that process.
In the first day of hearings, Bowman’s attorney, Mark Walters, argued that farming, with its inherent cycle of planting, reaping and sowing, cannot be equated to illicit copying of software or other products. Farming is merely using the product, or seed, to its fullest extent.
But so far, the Justices appear to be sympathetic to Monsanto’s position that planting is a form of copying and is therefore contraband. Reassuringly for Monsanto, the federal government has thrown its support behind the corporation’s battle with Farmer Bowman.
While the chances the Supreme Court will side with Farmer Bowman seem slim, on display here is the articulation without equivocation that Monsanto isn’t creating a product to generate sustainability or independence among farmers, but precisely the opposite.
As Justice Roberts Jr intimated, it is Monsanto’s seeds’ expiration date that provides the company with its purpose to exist.
Bequeathing biotechnology to Africa
But while Monsanto clamantly argues that the power of its seeds lies in their sterility, it – along with the Obama administration and Bill Gates – asserts that its innovative biotechnology is the answer to poverty and hunger from which much of Africa suffers.
“Fifty-three percent of the global seed market is owned by three corporations – Monsanto, DuPont and Syngenta.”
– Seed Giants vs US Farmers report
On the same day that Monsanto set out its arguments before the Supreme Court, it also celebrated its fifth anniversary of the WEMA (Water Efficient Maize for Africa) programme funded in large part by the Gates Foundation’s Alliance for a Green Revolution in Africa (AGRA). Bill Gates has asserted that in order to address hunger in Africa, biotechnology is needed to increase farmers’ yields.
Prominent food justice activist and defender of seed biodiversity, Vandana Shiva, described AGRA as a “major assault on Africa’s seed sovereignty” for its encouragement of biotechnology in African countries.
In 2009, three years after Gates launched his AGRA initiative, Doug Gurian-Sherman, a senior scientist with the Union of Concerned Scientists, published the first independent study on transgenic crop yields. It concluded that biotechnology has not resulted in increased yields, and, in fact, traditional and organic breeding techniques have a much more successful track record.
Why Gates maintains the advantage of using biotechnology is unclear – although it may have a little something to do with his considerable investments in Monsanto’s stock.
Furthermore, in 2011, the African Centre for Biosafety argued that WEMA has threatened Africa’s food sovereignty by functioning like a “Trojan horse” by opening new markets for transnational agribusiness corporations.
Monsanto’s patent for Roundup Ready soybeans is set to expire next year, but already queued up to replace it is a stronger Roundup herbicide that Monsanto will market as prepared to tackle the super weeds that are popping up at an accelerated rate on US farms using Roundup Ready plants.
A recent report published in January by Farm Industry News found that the number of farmers reporting Roundup-resistant weeds is rapidly increasing. In 2012, nearly half of all US farmers interviewed found super weeds on their farms, a considerable increase from the 34 percent reporting such weeds in 2011.
Although Monsanto’s first generation of transgenic soybeans and the concomitant herbicides are responsible for the development of these brawny weeds, it will try to convince farmers that their second generation of herbicides will provide the solution.
As Monsanto and pals flex their outsized muscles in court, it is clear that plants that endlessly generate their own needs for newer and more toxic products – and a profitable market that likewise recreates itself – are the only life cycles Monsanto wants us to believe in.
Charlotte Silver is a journalist based in San Francisco and the West Bank. She is a graduate of Stanford University.
Follow her on Twitter: @CharEsilver