When I first saw the news that the Public Patent Foundation was requesting a "reexamination" of four crucial Monsanto patents, hoping to invalidate them on the basis of preexisting prior art, I was skeptical. But that was before I knew anything about Dan Ravicher, the founder, president and primary crusading force behind the nonprofit. A profile of the young lawyer in Science last year reported that he has been successful, to varying degrees, in challenging patents granted to such heavyweights as Columbia University, Microsoft and Pfizer. And he is wont to express himself with formidable clarity.
"The patent system is being abused by private actors to the detriment of the mostly unaware public. Our health, our freedom, and our economic prosperity are all under assault from bogus rights meted out to the few with the power and expertise to game a system originally established hundreds of years ago to promote progress within society as a whole. The government, through primarily a captured patent office utterly failing to achieve its mission and skewed policies implemented into patent law by Congress and the courts, is not just failing to defend the public interest from abuse of the patent system, but is complicit in and supportive of such efforts."
Them's fighting words!
The Monsanto patents in question involve the methods by which genes from one organism are inserted into another. Ravicher's contention is that by the time Monsanto got around to patenting these methods, they were not new and unusual enough to constitute an invention worthy of protection.
Despite Ravicher's previous success, one would have to guess that the odds of success in invalidating these patents are long. But seen in a larger context, the attack on the patents is just one element of a broader pushback against Monsanto's assertion of intellectual property rights in an ongoing clash with traditional farming practices.
You can put How the World Works in the camp of those who feel uncomfortable with the basic premise that a farmer might not be allowed to save seeds produced by his or her own crops and then replant them. But the notion that Monsanto's contracts with farmers that do buy its seeds can somehow absolve Monsanto of liability for contamination of neighboring crops is outright criminal. Last year, the Center for Food Safety released a harshly worded report detailing Monsanto's various legal actions against hundreds of American farmers. The report is not what one would call an unbiased investigation, but it is still worthwhile, particularly insofar as it recounts recent court and legislative actions that are aimed at circumscribing Monsanto's practices.
In a concurring opinion that was part of a 2004 federal court decision in the case of SmithKline Beecham Corp. v Apotex Corp., a judge wrote, "Consider, for example, what might happen if the wind blew fertile, genetically modified blue corn protected by a patent, from the field of a single farmer into neighboring cornfields. The harvest from those fields would soon contain at least some patented blue corn mixed in with the traditional public domain yellow corn, thereby infringing the patent. The wind would continue to blow, and the patented crops would spread throughout the continent, thereby turning most (if not all) North American corn farmers into unintentional, yet inevitable, infringers. The implication that the patent owner would be entitled to collect royalties from every farmer whose cornfields contained even a few patented blue stalks, cannot possibly be correct."
Amen. Additionally, both Indiana and North Dakota have passed legislation that makes it harder for Monsanto to send its investigators snooping around fields without prior permission and some evidence that indicates transgressions have occurred. Indiana also required that if Monsanto files a lawsuit against a farmer, the court action must be filed in Indiana, contravening the provision in the standard Monsanto contract that mandates that all legal actions be heard in St. Louis, Monsanto's headquarters.
(One nit: The Center for Food Safety's report also states that federal and state policymakers are beginning to draft "legislation that will hold seed manufacturers such as Monsanto liable for the spread of their patented genetic technology through pollen dispersal, seed contamination or other means." However, it provides no footnote or other evidence to back that assertion up.)
Paying attention to these Midwestern legislative moves in the Midwest is important, because they are proof of grass-roots discontent with Monsanto's corporate activities by farmers, as opposed to environmental activists or anti-GMO crusaders. And it is a clear reminder that corporations are not allowed to profit off their control over intellectual property by divine right. They do so within the constraints that a democratic society sets. If farmers in the Midwest are mad enough that legislators are listening, then maybe we should all be cocking our ears.