The Spurious Case for Biological Patent Infringement

It is a basic tenet of all legal systems that Nature cannot be sued or brought to court by human beings. Only human beings can be held responsible for their actions in a court of law. So, for example, if a violent storm destroys or damages your property, or if, with the passage of time, the elements cause your house to weaken and collapse, or if rust eats away at your car, or if wild animals or insects consume your crops, Nature cannot be held responsible for these harmful results, even though it is the cause of all of them. On the other hand, if a human being were to cause any of these damages, then one could be held responsible for them. There is, for example, an important legal distinction between a person who is infected unknowingly and unintentionally with a deadly virus or disease by another person and dies as a result, and a person who is knowingly or deliberately infected with that same virus or disease by another person. Only in the latter case can the person be prosecuted and punished for one’s malicious action.

In the case of plants that are patented because a single gene in them has been modified by an individual or company, what is it that carries the pollen of the patented organism away from the land on which it is sown? Depending on the species, it is either the wind or pollinating insects such as bees and butterflies – neither of which can be held accountable for their actions in a system of human law. And because of this natural intervention, which is the sole cause of carrying the pollen from the land on which the genetically-modified organisms were planted onto land where these organisms were not planted, the farmer whose crops are fertilized by this pollen cannot be held legally responsible for this result, and therefore has not violated the company’s biological patent.

If a farmer were, like a thief in the night, to steal pollen from genetically-modified crops and use this pollen to fertilize one’s non-genetically-modified crops, then one would clearly be guilty of taking something that does not belong to one. But when the “theft” results from a natural process such as the wind or the pollinating actions of insects, then the farmer whose crops are then fertilized by the modified pollen cannot be held legally responsible for this common and very ancient act of Nature. Moreover, the complex process of sexual reproduction, which is the process that introduces the patented gene in the seeds of other plants that didn’t contain it, was most certainly not invented, developed, or perfected by the individual or company that claims that their genetic patent has been violated. In the world of human creations, where the idea of patents first developed, there is no comparable process to sexual reproduction, for this would mean that a feature, process, ingredient, or part of one manufactured product could somehow, without any intervening act on the part of a human being, mysteriously appear in another manufactured product.

Although it would be expensive to do so, it is physically possible to prevent pollen from escaping from the land on which GMOs are planted, such as by erecting tall barriers to prevent the pollen from being carried away either by the wind or by pollinating insects, or by growing them only in greenhouses. In cases like these, it is incumbent on the company that wants to prevent any infringement of its biological patent to take these precautions to prevent their plants’ pollen from fertilizing other plants. And if they fail to take these precautions, then they have no justification in later accusing farmers whose crops are fertilized by their pollen of having violated their patent, since they have failed to take the necessary precautions to prevent the pollen from being taken away from their property by entirely natural – and not human – processes.

To illustrate how absurd the ruling of patent infringement in such cases is, let us consider the case of genetically modified animals such as fish or cows. If a genetically-modified salmon were to escape from a fish farm and pass its modified gene to wild salmon, then according to the logic of this ruling, all the wild salmon that have this gene would belong to the owner of the genetic patent, and any fisherman who caught one of these salmon would have to pay a fee to the company that owns the patent. If a genetically-modified bull were to escape from the farm where it lives and inseminate cows on another farmer’s property, then the offspring of those cows that possess the modified gene would belong to the company that owns the patent for the gene. Clearly, such an absurd ruling would provide a very strong incentive for the owners of genetic patents to allow their genetically-modified organisms to go about and spread their modified genes as widely as possible.

Such a ruling violates both common sense as well as the idea of property. In these cases, it is incumbent on the owner of the patented gene to make sure that their genetically-modified animals do not escape and inseminate other animals. And if they fail to do so, then they cannot claim that the law must protect their intellectual property, for this ruling would reward and encourage irresponsible behaviour on their part.

What is true of animals is equally true of plants: because of the intervention of a natural process in the act of plant fertilization, the owners of genetic patents must take steps to prevent the dissemination of their genetically-modified pollen if they do not want it to fertilize other plants; and if they fail to do so, then they cannot claim that a farmer whose crops have been fertilized by this pollen is guilty of violating their patent. This is because of the basic legal principle that, although human beings can be held responsible for all of their actions, as well as the consequences of those actions, no human being can be held responsible for an act of Nature.

Companies like Monsanto are using the model of patent protection to oppress and tyrannize over farmers and consumers in the United States and elsewhere. If pollen from their genetically-modified crops escapes from lands where they are sown and pollinates non-genetically-modified crops, then it is their fault for not having taken the necessary precautions to prevent the pollen from escaping the properties on which their genetically-modified crops have been sown onto neighbouring properties. After all, most farmers, in particular organic farmers,[1] do not want their crops contaminated by Monsanto’s pollen. In a just world, judges would rule in favour of the farmers and not in Monsanto’s favour. But that is not what has happened in the real world, which means that we do not live in a just world. We live in a world that, more and more, is controlled by corporate tyrants like Monsanto, who use their vast quantities of money to control both the legal and political systems to further their selfish and tyrannical ends. As was the case in the past before democracy and the rule of law were established, the rich and powerful are using their wealth and power to further their narrow ends, while they oppress and subjugate the weak with impunity.

Those who work for companies like Monsanto know very well that pollen containing their genetically-modified genes will be carried by natural processes from their plants to other plants that don’t contain the gene. The fact that they have taken no measures whatsoever to prevent this from happening is an instance of incredible carelessness, which is comparable to someone leaving something valuable, such as one’s money or jewellery, lying about on the street or completely unprotected, to be carried away by the first person who comes across it, and then later claiming that that person is guilty of theft.[2] Monsanto has sued these farmers for patent infringement, causing some of them to go bankrupt. Thus, Monsanto is using its genetic patents to tyrannize over farmers and force them to buy its patented seeds, since any farmer who refuses to do so may be sued for patent infringement and consequently lose one’s farm or livelihood.

This is Monsanto’s nefarious ploy, the tyrannical manner in which it has gained almost complete corporate control over the corn and soybean markets in the United States in such a short period of time. By allowing pollen from its genetically-modified plants to spread to crops that don’t contain the gene and then suing farmers for patent infringement, it has taken away the farmers’ freedom not to grow Monsanto’s genetically-modified crops. This denial of farmers’ freedom is nothing more than tyranny masquerading as patent infringement. Moreover, it is a blatant violation of the basic principle that underlies the operations of the free market, since, in order to remain free, all the participants in a market must not be coerced to purchase any individual’s or company’s products.

The only just ruling in these sorts of cases is the following: if the patent holder allows the patented gene to be carried away by natural processes such as the wind or the actions of pollinating insects, which means they have made absolutely no effort to contain the fertilizing part of the plant or animal from spreading beyond the lands where they are grown or kept, then any offspring containing the patented gene can no longer be claimed by the patent holder as one’s property.

In Shakespeare’s The Merchant of Venice, the moneylender Shylock has a bond with Antonio, his nemesis, stipulating that the punishment for Antonio’s failure to repay the sum of three thousand ducats that he has borrowed from Shylock is a pound of his flesh, to be taken by Shylock from whichever part of Antonio’s body he chooses. Shylock hates Antonio because of the latter’s past intercessions on behalf of Shylock’s debtors in order to save them from ruin. When a ship that Antonio is counting on to bring valuable merchandise with which he intends to repay the debt is reported to have sunk, he declares that he cannot pay the bond in time and therefore must forfeit his life to the rapacious moneylender. But just before Shylock is about to exact his pound of flesh, a wise judge declares that he must remove exactly one pound of his victim’s flesh – no more nor less – and if he errs in his judgment and causes Antonio’s death, then his life shall also be forfeited for having violated the terms of the bond and for committing murder.

When a company like Monsanto claims that the crop of a farmer that has been fertilized by its genetically-modified pollen legally belongs to it, just as Shylock was made to do, it should be made to extract from that farmer’s crop only that single gene, out of the tens of thousands of genes contained in the plant or seed, which Monsanto claims is its intellectual property, and restore the remainder of the crop – intact – to the farmer. And if Monsanto removes more than this single gene, or, by this operation, ruins the crop by rendering it infertile or unmarketable, then Monsanto is guilty of either taking or damaging private property that does not belong to it, and must therefore pay the full market price of the crop to the farmer.

This is the only fair resolution of this dispute. For to give large and powerful companies like Monsanto legal power over small farmers whose crop has been fertilized by an act of Nature with its genetically-modified pollen is to permit the oppression of the weak by the strong. And this is a scenario that has occurred countless times in the past, such as the oppression of subjects by kings, princes, rich landowners, and other individuals who had power over them, and which the long and difficult road towards democracy and the rule of law were meant to remedy, by protecting the weak from the tyranny and rapaciousness of the strong.

[1] One of the stringent criteria of organic foods is that they not contain any genetically-modified organisms. Hence, a farmer whose crops are contaminated by genetically-modified pollen cannot sell one’s crops as organic.

[2] If these valuables were left in one’s house and one day one left the door unlocked, a person who entered uninvited and removed these valuables would be guilty of theft, since one is guilty of trespassing on private property. But in the case of genetic patent infringement, the pollen is no longer on the property of the farmer that sowed the plants containing the GMO, since it has been carried away either by the wind or by pollinating insects.