Corporate Space and the Monsanto Case

By Stephen Menendian

The Supreme Court is currently reviewing a lawsuit by the agri-business giant Monsanto against an Indiana farmer. In Bowman v. Monsanto, 75-year old Vernon Hugh Bowman has petitioned the Supreme Court to review Monsanto’s lawsuit against him for purchasing and planting seeds that apparently contained Monsanto’s patent protected anti-herbicide genome in them. Bowman purchased the soybean seeds from a grain elevator and planted late in the season as a backup crop (he had already planted a crop of seeds purchased directly from Monsanto for his early season harvest) rather than for livestock feed or some other purpose.

The issues involved in this case are elemental to life. This case concerns the ability to patent life and to control the sources of life, such as the ability to produce food. Monsanto claims that Bowman’s planting of seeds from plants he grew infringed their patent. Bowman argues that the patent rights must have limits, especially with respect to life (which Monsanto calls “self-replicating technologies,” which are different from software or other patented technology), and especially when the private sector is, essentially, asserting or threatening monopoly control over a critical part of our food supply. In our article, “Beyond Public/Private: Understanding Excessive Corporate Prerogatives,” Haas Institute Executive Director john powell and I argue that the public/private distinction obscures meaningful differences between private actors, generating and insulating corporate prerogatives in the process, and that excessive corporate power threatens individual liberty and private space. This case vividly illustrates these ideas.

While both are ostensibly private actors, multi-national giant Monsanto can hardly be considered the same class as small farmer Hugh Bowman. Monsanto controls 27% of all genetically modified/engineered seeds sold worldwide (as of 2009). The public/private dichotomy obscures the power and production differentials of these two parties.

Monsanto’s claim to own the rights to Vernon Bowman’s legally authorized purchase of soybean seeds from a grain elevator raises serious questions about not only corporate control over the food supply, but the existence of private space and individual liberty. As we assert in our article, “[t]he expansion of corporate space is a threat to both private and public space. […] Private space is conceived largely as being free from the coercive, concentrated power of the state. Yet what replaces the state in corporate space is the coercive, concentrated power of the corporation.” That’s exactly what Monsanto’s suit does.

For millennia, farmers have enjoyed the rights to plant seeds and grow crops. Fewer and fewer major corporations increasing own patent rights to these genes. In fact, three agrichemical companies now control 53 percent of the global commercial seed market, the first link in the food chain. If corporations can splice a single gene trait into a seed genome, they can potentially claim patent rights to those sources of life. This is a significant difference from other forms of technology like software or industrial products.

Consider what the founding fathers might have made of Monsanto’s claims. Washington, Jefferson, and Madison were all Virginia planters (our first President, author of the Declaration of Independence, and author of the Constitution respectively). They feared not merely the concentration of political power, which they rebelled against and labeled tyranny, but they also feared the concentration of economic power. For two centuries, Congress refused to permit patents on staple crops. This was based not only on the common sense convictions of our nation’s founders, but also rooted in a view of individual freedom. As we wrote in our article, “Thomas Jefferson firmly believed that economic independence was a foundation of individual freedom, expressed in the ideal of the independent farmer.” That independence is threatened now by Monsanto’s claims, with national and global repercussions.

Stephen Menendian is the assistant director of the Haas Institute for a Fair and Inclusive Society at UC Berkeley.