Seed and Idea
“Food for Thought”
by Adam Matta
I believe I have identified a discrepancy in the letter of law concerning intellectual property that should render illegal any entity owning a patent on a seed. Clearly, this observation may have been made by others, but in the different dialogues concerning private parties and companies like Monsanto and the abusive practices they undertake, I have yet to see this specific argument, and feel it could prove efficacious in attempts to curtail these abuses.
Numerous corporations such as Monsanto, DOW, Bayer, have been seen to manipulate the letter of intellectual property law toward private gain. As one example of their abuses, these entities will brandish their ownership of the patent on what is claimed to be a proprietary seed, and, in turn, hold farmers and other parties economically hostage.
Since the dawn of agriculture, farmers would save unused seeds from one harvest year to the next, to be planted for further yields. Even in the early 20th Century, as explorations in genetic modification and hybridization were undertaken, this practice applied.
In the 1980’s, however, corporations were able to manipulate a reading of the law and convince judges that a patent could be permitted to a genetically-modified seed. An industrial bacterium had been developed by a corporation to decompose waste oil, an innovation for which a patent had been secured. The courts declared that an original composition of matter, even one that is a living organism, could, in this case, be patented. However, lawyers were able to convince judges that the next step, awarding patents to organic plant varieties, including ones that eventuated in food intended for consumption, was inevitable. Once the precedence had been set, they were able to demand a kind of licensing fee for farmers to use the seed.
Monsanto, for example, has developed powerful pesticides, which require the appropriate seed strain to go with it. If farmers want to grow these pest-resistant crops, they must purchase a license for the seed.
There have been many cases in which farmers found to save seed for the next year were held liable, with lawsuits pursued against them. There were other cases where a Monsanto-owned seed was accidentally carried onto the field of a farmer not under contract, but the company held these farmers accountable for lost proceeds and profits.
In these activities, Monsanto has accrued amounts of capital that allow them to continue the cycle of manipulating the letter of the law, and, in turn, dominate food production and the markets in which the food is sold.
At the time of this writing, it seems their goal is to dominate food production and distribution for the entire world. If one wants to grow, or eat produce, one must purchase it from Monsanto.
Their stated goals to “feed the world” are dubious, at best. In addition to raising concerns of carcinogenic components, the pesticides they market have been shown to decimate and eradicate bee populations. It is well known that bees provide as much as one out of every three bites of food we consume.
There are many who protest these events every day, some with great degrees of success, and there may be an opportunity in coming years for the Department of Justice in the United States to review whether Monsanto may be operating as a monopoly.
However, each year, these entities take further steps toward dominating the world’s food supply. A merger is being explored between Monsanto and Bayer. Bayer commits very similar types of abuses in the realm of pharmaceuticals. Only through committed public outcry has there been a delay in this process.
While these numerous actions around the world are proving effective in challenging these abuses, I would like to offer one further observation, which may, in fact, prove to be especially effective in these challenges, and one which I have not seen widely discussed. It concerns a contradiction in the ruling which has granted patents to seeds.
This observation may indeed have already been considered by the courts, but if it has not, I believe it is an outstanding error in judgment that I sincerely hope can be taken into consideration in any further opportunities to review and, ideally, overturn this sequence of decisions. I realize it is likely I am not the only one to have observed this incongruence in the law, but I have yet to see it discussed widely, and so I put it forth here.
How can the law protect a seed?
A seed is as naturally-occurring and freely-flowing as an idea.
Ideas become works of art and innovation and seeds become nutrients, fruits and vegetables.
There have been many instances of 20th Century artworks and works in advertising in which the “idea” is seen to be indistinguishable from the “work.” However, in the case of the letter of IP law, a distinction would immovably maintain.
It can be seen that if protection under the law will not extend to an idea, it must, in turn, be prohibited from extending to a seed, even those that claim to be “original innovations.”
When some have attempted to argue that seeds are naturally-occurring objects and it is hubris and unethical to own a patent on an item that comes from nature, Monsanto insists that their seeds do not occur in nature.
I seek to draw attention to a discrepancy in this claim. Their seeds may not be “birthed” in nature, like a traditional, organically-occurring seed, but any seed only expresses its intended function once it is interacting with natural contributors, such as soil, sunlight, water, etc. If this condition is not observed, Monsanto chemists are simply designing and building small, pod-like constructions that sit on laboratory tables.
Monsanto’s seed “occurs” in nature just in the same way that a seed “occurs” in nature that has fallen from a stamen. It undertakes interactions with soil, water, sunlight, etc., that are independent of its creator, unpredictable, in order that it fulfill its intended utility, i.e., to become food for consumption.
A seed is a fundamentally different category of industrial item than a machine, a piece of code, a bacterium developed with a specific industrial purpose, or any other innovation protected under IP law.
It is reproachable to believe that a GM seed for, say, an apple, is an invention whose function is to withstand pesticides. This function is only one part of its ultimate utility: to become a consumable food product, which happens to also be pesticide-resistant.
In copyright, a project may not be protected if it is only an idea. Once the idea is fixed in a tangible medium, in a document, or physical form, it is then eligible for protection.
A primary reason that ideas are ineligible for protection is their ephemeral nature. It is challenging to locate from where ideas come, and how they occur in one or more imaginations at any synchronous times. Ideas flow throughout the collective society, and it is impossible for one individual to claim its ownership.
Seeds, likewise, can be transferred from one individual’s field to another’s, as in the cases above, where a Monsanto seed was carried onto an adjacent field by rain, wind, animal or bird.
Monsanto itself has claimed that their propriety over their seeds should operate in precisely the same manner as software protection: users are prohibited from copying software like Microsoft Word, and from using these copies, without financial or legal consequences.
A seed, even a genetically-modified one, is not a piece of code. It is an organic item, which does not express its utility until planted in soil, and is interacting with sunlight, water, nutrients. The seed undergoes these activities independent of its creator, in naturally-occurring processes. Patent law does not extend to any natural processes. A seed is categorically not a seed without undergoing interaction in a natural process. These chemists have invented an object that must interact with the natural world in order to fulfill its function, not a self-contained object whose utility is complete and evident once constructed.
As stated above, a seed is not a machine, or other technological innovation. A seed possibly occupies a sort of liminal category between “idea” and “object,” but does not sufficiently exhibit fulfillment of the requirements of the latter. It also does not fulfill adequate consideration for “code” or “software.”
It must therefore be rendered illegal to own a patent on any seed, and, for that matter, stem cell, or pharmaceutical, which likewise depend on external, unpredictable, naturally-occurring processes to fulfill their intended utilities.
As we move toward new combinations of biology, technology, mechanical innovation, coded software, integration of these in our everyday activities, ensuing concerns regarding privacy and citizenship, corporate abuses, sentient beings who are birthed from code or genetic modification, and resources of capital distributed disproportionately away from those living in poverty, and who need to eat adequately, I believe it is critical to observe and defend the distinction I draw here.
If the law does not extend protection rights to an idea, it cannot extend them to a seed.
For an example of an original combination of industrial components intended for public consumption, which, unlike GM seeds, qualifies for both patent and copyright protection, please see this project, an invention from 2006:
project: “Bicycle Wheel and Walkman”
Presented at World Maker Faire, 2012
Companies like Monsanto attempt to claim that the patent on its seed should operate like a copyright on software, but, in fact, unlike my innovation, which qualifies for both copyright and patent protection, I believe I have demonstrated above that its seed must, in fact, be seen to meet qualifications for neither.