Seeds of innovation

Monsanto patented Roundup-ready soybeans, which are now almost all of the soybeans grown in this country. Any farmer who plants Roundup-ready soybeans has to buy the beans they plant from Monsanto, and it comes with a license that says the farmer is not allowed to replant the next generation of beans.

Along comes a farmer who decides to buy his beans from a grain elevator as if he were using them for feed, with no license and no assurance that the beans are Roundup-ready (but a reasonable guess that most of them are). He plants those beans, harvests them, and keeps some to replant the next year. [Along the way, he uses an herbicide which kills weeds as well as the non-Roundup-ready plants, so the next generation is entirely Roundup-ready, but that’s not really relevant to the decision.]

A unanimous Supreme Court ruled in favor of Monsanto:

“That is because, once again, if simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention. The undiluted patent monopoly, it might be said, would extend not for 20 years (as the Patent Act promises), but for only one transaction. And that would result in less incentive for innovation than Congress wanted.”

I’m heartened that the Supreme Court will soon tamp down the newly efficient used book market, or allow us to insist on royalties to be paid to publishers and authors on used book sales. After all, Congress has promised authors and publishers that copyrights will last for many more decades than patents. We are entitled to our perpetual profits cut of all book purchases. But the newly efficient used book market means that publishers only make money in the first year or two that a book is on the market. This is why we don’t keep old books in print, and why we put out new versions of textbooks as fast as we can, and why book prices are driven up and up. [College bookstores make far more money on textbook sales than publishers do, because college bookstores make money on sales of used books over and over.] This is clearly not what Congress intended, or there would be no reason for copyrights to last for decades. Congress wanted me to have a much greater incentive to write and publish. On that logic, the first sale doctrine clearly should no longer give consumers a right to sell used books.

On its surface, the Supreme Court is focused on self-replicating items like seeds as a unique problem. But a consistent Supreme Court cannot write the quoted passage and then insist that it could not be applied to copyrights.

And by the way, what happens when you receive a patented gene therapy to save your life, and then fail to pay the monthly (or weekly, or daily) survival fee to Pfizer or Merck for your body’s continued replication of new cells containing the patented genes? If you think that’s absurd, you haven’t been farming lately.