GENTECH archive


on lawsuits and genes

Read this only if you are prepared for alternative ideas

December 20, 1999
Dow Jones
Peter Huber
(Editor's Note from the WSJ: This is an opinion piece from Monday's Wall
Street Journal. Mr. Huber, a fellow of the Manhattan Institute for Policy
Research, is author of "Hard Green: Saving the Environment from the
Environmentalists," just out from Basic Books).
NEW YORK -- Pitched on its environmental merits, the class-action lawsuit
filed last week against Monsanto would, according to this op-ed piece, be
thrown out in short order. So the lawyers dressed it up as an antitrust case
instead. Now it's the Microsoft case, redirected against genes.
The suit concerns two genes that Monsanto engineered, patented and now
markets. Yieldgard causes corn to produce its own internal pesticide that
wards off pests. Roundup Ready makes seeds resistant to Roundup, a Monsanto
herbicide. Monsanto, the plaintiffs charge, has licensed its patents to
various co-conspirators, including DuPont, Dow Chemical, Novartis and
AstraZeneca, who in turn license genetically modified seeds to farmers.
License - not sell - because copying genes is even easier than copying
software, and Monsanto doesn't want to turn every customer into a competitor
one harvest hence. Indeed, Monsanto already has to snoop, sue and intimidate
(say the plaintiffs) to stop farmers from cutting it out of the action.
The intimidation is working, we're told. Through Monsanto's patents and
licenses, six companies have gained control of half to three-quarters of
U.S. corn and soybean seed distribution, and they're now poised to
monopolize food production worldwide. An extra bonus for Monsanto: Its
lucrative patent on the Roundup herbicide will soon expire, but farmers may
be required (the plaintiffs anticipate) to use only the original Roundup
herbicide with Roundup Ready seeds. Legitimate power in one market will
surely be exploited to extend power illegitimately in another.
It's neatly argued - neatly enough to cause much legal mischief for years to
come. But it won't ultimately prevail in court, and the plaintiffs can't
really believe it will. Like so many other crusading activists, they are
using the courtroom as bully pulpit, because they can't get the traction
they want in legislative or regulatory forums. They're led by Jeremy Rifkin,
tireless gadfly and America's foremost proponent of ecological eugenics. The
new eugenics embraces passivity in the pursuit of supposedly superior genes
as fervently as the old embraced intervention.
The antitrust case will, the op-ed says, founder on a clear legal principle:
Patents, while they last, are supposed to create monopolies. There's no
indication that Monsanto has gained more market power than its patents
warrant. Quite the contrary, it has licensed its patents widely. The
plaintiffs discern here further evidence of competition-suppressing
conspiracy, but in antitrust law ready licensing establishes just the
opposite. As for taking over the world, really useful advances are supposed
to do that too, especially when they cost almost nothing to replicate. Any
really major improvement in crop genes is likely to ascend fast and then
stay on top until a better one comes along.
That was true long before anyone began patenting genes. Indeed, greens have
long denounced the perils of "monoculture," the inexorable tendency of a
single superior strain of wheat or rice to spread across farmland from Boise
to Bangladesh. The phrase survival of the fittest was used to describe
economic imperatives long before Darwin applied the term to the rest of
nature. What's new today isn't that superior crops spread far and wide; it's
that genetic technology lets Monsanto improve genes quickly and
deliberately, rather than leaving it to nature or farmers to improve them
slowly, by much chancier means.
Equally clear is that gene monopolies are likely to prove vulnerable and
short-lived. Patents expire, and in a field as young as biotechnology, they
are likely to expire long after noninfringing improvements have overtaken
them. Other big companies can harvest and re-engineer DNA from the vast
reservoir of free-for-all genes that nature has already filled, and millions
of farmers will continue to select and cross breed too, as they have since
time immemorial. No single patent or company is going to "control the basic
means of production of the global food supply," which is what the plaintiffs
say Monsanto aspires to do. There simply are too many genes, too many crops,
too many ways to breed them and too many people planting them. Monsanto is
no Microsoft, and there isn't going to be one, not in the global food
industry. The proposition that such a thing is possible is absurd. In due
course, a trial judge or appellate court is going to say so.
By the time that happens, however, the plaintiffs may no longer care. Their
real objective is to create friction and hostile publicity. They aren't
trying to save free markets from a monopoly, and the last thing they want is
more competition in this field. What Mr. Rifkin is after is something even
less competitive than a monopoly. He wants nobody in the genetic technology
business at all.
The second half of the lawsuit makes that quite plain. Large swaths of it
address the environmental and safety objections to genetically modified
crops. Monsanto, say the plaintiffs, rushed its seeds to market without
adequate testing. Nobody really knows if they're safe. The crops may cause
allergic reactions; they may be toxic; they may kill monarch butterflies;
they contain "markers" that may reduce the effectiveness of antibiotics.
Regulators in the U.S. and abroad don't trust them. Farmers who bought them
were duped. Consumers hate them.
This half of the complaint is largely premised on the claim that Monsanto's
bad genes won't stay bottled up at all. Bad crops, say the plaintiffs, will
get mixed up with good. Bad strains will spread from the farmer's field into
other habitats, and bad genes will hop from Monsanto's seeds into other
organisms. Almost every creature in nature, it seems, will misappropriate
Monsanto's bad genes. Except the human farmer. The farmer, recall - every
farmer from Boise to Bangladesh - will end up with no place to buy seeds at
all, other than from Monsanto.
Meanwhile, on yet another front in the same battle, Monsanto finds itself
excoriated for its interest in a "terminator" gene - the ultimate enforcer
of genetic patents, which stymies the genetic pirate by rendering crops
sterile. Deluged with criticism that such a gene will culminate some day in
Third World famine, Monsanto recently agreed not commercialize the
terminator, pending review by independent authorities on development. Which
is unfortunate, if the real threat to the world isn't Monsanto's monopoly
but rather its inability stop the bad gene's propensity to reproduce.
The real threat to the world's environment is neither monopoly nor its
obverse, engineered genes going feral. The real threat - enormous,
immediate, readily measurable and environmentally ruinous - lies in
yesterday's genes cultivated by yesterday's farmers, on endlessly spreading
acres of what was yesterday's wilderness. The U.S. numbers are bad enough:
For every acre of land we occupy with homes, offices, roads and byways,
Americans cultivate six acres for crops. The rest of the world's ratios are
far worse. Most of what the wilderness is losing to humanity world-wide is
being lost to Third World agriculture.
Almost alone in the world, the U.S. recently began to reverse the relentless
expansion of its agriculture across the landscape. We harvested roughly 80
million more acres of cropland 60 years ago than we do today. Since then,
vast areas of land have been restored to wilderness because the footprint of
our farms has been so dramatically reduced. Estimates vary widely, and
definitional debates rage, but by every serious estimate, America's forest
cover today is somewhere between 20 million and 140 million acres higher
than it was in 1920. By comparison, all our cities, towns, suburbs, roads
and highways combined cover less than 60 million acres.
What happened? Genetic seed improvements, fertilizers, pesticides and the
relentless efficiencies of corporate farming almost trebled the land-to-food
productivity of our agriculture. And reforestation almost certainly accounts
for a second, little noted fact: As best anyone can measure these things,
the North American continent now absorbs more carbon dioxide than it emits,
because our growth of new woods more than offsets our burning of old fossil
Yet for all that, agriculture still crowds out far more wilderness than all
other human activities. The great green hope for genetic engineering is that
it can shrink the agricultural footprint a great deal more than it already
has. Wild plants convert about 0.2% of inbound solar energy to edible food.
Use the technology at hand, and we can almost certainly boost a plant's fuel
efficiency far more than we can boost a car's.
If we could boost plants to the point where they capture as much solar
energy as our best photovoltaic cells - a plausible hope, perhaps, given the
power of the genetic technology at hand - we would shrink the human
footprint on the wild far more than we would by eliminating every last acre
of our cities, suburbs and highways. The green case for genetic engineering
is as simple and overwhelming as that.