It has been a pleasure and a privilege to voice my opinions on the increasingly important and often misunderstood subject of intellectual property. But after nearly three years writing this column, I’m taking a break from punditry to devote more time to reporting and a new book project.I’ve argued here-and in my book Owning the Future, which spawned this column-that in allowing corporations to amass ever broader, exclusive proprietary rights to entire areas of knowledge, we are making some grave mistakes that we will almost certainly come to regret.
A recent European patent ruling perfectly underscores the point. The case involves an audacious patent by the plant biotechnology giant Monsanto claiming exclusive rights over all genetically engineered soybeans-yes, you read it right-created by the company’s or any other method. In the latest surprise development, after eight years languishing on appeal, the patent was upheld as valid by the European Patent Office.
Bottom line: this patent is full of beans.
Such a broad patent does nothing to provide incentive for new innovation. Instead, it does the precise opposite, shutting off potential competitors’ efforts in the face of the time-limited monopoly. Of course, the situation is all the more worrisome when the monopoly involves a crucial world food crop. Even the U.S. Department of Agriculture could see this problem when a small Wisconsin-based firm called Agracetus was granted a close cousin to the soybean patent in the United States a decade ago-one claiming rights to all genetically engineered cotton.
In that case, the USDA stepped in, contested the patent, and ultimately helped convince the U.S. Patent Office to overturn it. Ironically, a major force backing the patent’s overturn at that time was Monsanto. The company’s 292-page legal memorandum argued persuasively that the broad Agracetus patent should be revoked. But that was before Monsanto’s 1996 acquisition of Agracetus’s plant biotechnology assets-including its European soybean claim. From then on, Monsanto defended the soybean patent, deciding that a monopoly on genetically engineered crops wasn’t so bad after all.
It is worth noting that Monsanto and Agracetus structured their broad claims around a gizmo called a “gene gun,” though neither actually invented this device for inserting genes into plants like soybeans and cotton. The technology was developed by a team at Cornell University. Thus, the multibillion-dollar question is this: just because Agracetus was the first to use this tool to blast gold beads covered with DNA into soybeans, why should that entitle them to demand royalties from another firm inserting different genes into different soybean varieties by different means? Put another way, why should one firm that accomplished one significant but small step be able, for two decades, to control innovation over an entire crop species? But that, alas, is precisely what the firm is trying to do (and what it has done in Europe): its patent governs all genetically modified soybeans engineered by its or any other method. And we’re talking about a lot more than tofu and soy sauce here. Soybeans are the second-largest U.S. crop after corn, the world’s foremost source of protein and oil, and a major component of livestock and poultry feed, a key ingredient in the food chain.