Are Genetically-Engineered Plants Self-Replicating Inventions?

Seed PodCan You Break The Law By Planting Seeds?

If you are in the USA, the answer is YES (at least for the time being).

Yes, that is, if your seeds contain genes patented by Monsanto, for example.

Yes, even though the patented genes may have ‘contaminated” your organically-grown crops via pollen, seeds, or both, that have drifted in, or “trespassed”, from adjacent fields of GMO crops.

What’s up with this?

A Preemptive Strike

A major producer of GMO seeds, Monsanto has a reputation of aggressively investigating and suing farmers it suspects are in violation of its seed patent rights. (See a CBS news story here and a clip from the documentary Food, Inc. here, for examples.)

In response to Monsanto’s behavior, a coalition of organic farmers – who, by the way, don’t buy genetically-modified (GM) seeds from Monsanto – filed a lawsuit against Monsanto in 2011 that would prevent the company from suing them if pollen or seeds from the crops grown from the company’s patented GMO seeds happened to drift into their fields.

Because so much of U.S. crop acreage is currently planted with GMO seeds (please see graph below), this is not an unreasonable concern.

Adoption of genetically engineered crops in the u s

Despite this, early in 2012, the presiding judge in this case effectively sided with Monsanto by dismissing the farmers’ lawsuit. (Read excellent coverage of this story at NPR.)

This decision has recently been appealed, so we’ll have to wait and see what happens.

Patented Seeds and the Exhaustion Doctrine

Let’s say you own the patent on an item. According to common patent law, if you legally sell the item to someone, then you no longer control the use or resale of the item.

This is called the exhaustion doctrine of patent law. According to this doctrine, “…once an unrestricted, authorized sale of a patented article occurs, the patent holder’s exclusive rights to control the use and sale of that article are exhausted, and the purchaser is free to use or resell that article without further restraint from patent law.” (from Wikipedia)

But patented seeds are different from most other patented products. That is, when one uses patented seeds, they germinate and grow into plants, which likely produce a new generation of seeds.

The key question: Is this next generation of seeds still controlled by the patent holder?

According to Monsanto’s position on saved seeds, the answer is YES.

Blind Justice

Monsanto Seeds As Self-Replicating Inventions.

Monsanto seeds are sold to farmers only if they sign a Technology Agreement, which imposes the following conditions.

First, farmers can only plant the seeds for a single season.
Secondly, farmers can’t give the seeds to other farmers for planting.
Thirdly, farmers can’t save crops produced from the seeds for replanting or give saved seed to other farmers for replanting. (Farmers are, however, allowed to sell second generation seed to local grain elevators as a commodity.)
Finally, farmers can’t provide the seed for breeding, R&D or seed production.

Thus, the genetic traits patented by Monsanto carry forward with each successive seed generation. Consequently, Monsanto’s patent rights are never exhausted.

The issues raised when considering patent laws and self-replicating technologies are certainly knotty, as well as timely, ones. Indeed, the U.S. Supreme Court may soon be getting involved.

So, patent rights regarding genetically-engineered plants will likely remain somewhat unresolved for the time being.

Update: Supreme Court Supports Monsanto in Seed-Replication Case

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