Are Plant Patents the Problem?

There is an interesting article at by Frederick Kaufman on GMO seeds.  Although I don't agree with his conclusion, this is the sort of nuanced view about GMOs that deserves more attention.

In short, my take is that Kaufman sees some GMOs are good and some as bad, and the bad are mainly (in Kaufman's) view the result of plant patents.  Here is Kaufman:

Intellectual property laws need to be rethought. A copyrighted movie or book remains the same movie or book, but when food becomes a legal construct or an intellectual property right, it stops being food. Of course, you can eat patented popcorn the same way you can consume its unpatented cousin. But unlike an iPhone or a flatscreen TV, everyone needs food, and we need it every day. . . . Since everyone must participate in the food market to the tune of 2,700 or so calories a day, food property rights allow those who hold food patents a guaranteed portion of profits from a guaranteed purchase, which is fundamentally unfair. Why should Big Ag possess privileges beyond any other sort of business on earth? The rules that govern patents for electronics and entertainment should not be the same rules that govern the most vital element of human life.

I'm not at all convinced by the "we need food to live" argument that somehow makes the patent and copyright laws for food different than those for software, electronic books, or other technological innovations.   

The thing that Kaufman discounts is the incentive that patents give the innovator to innovate.  He seems to think many scientists will innovate from intrinsic motivation.  This is made explicit in the following quote:

Like many scientists, Dr. Ronald’s primary motivation is not profit, but insight into the workings of nature.

While that might be true of some, I doubt it is true for most.  And it is almost certainly not true for those innovators at the margin.  Patent (and copyright) laws try to balance two competing factors: 1) the incentive to innovate and 2) allowing the invention to be more widely distributed in the population so the gains are more widely shared.  I am open to the argument that these two things need some re-balancing - perhaps by shortening the time a patent or copyright is in effect.  But, to totally ignore the incentive to innovate is, I think, unwise.

Finally, I think we've got to take a step back and ask what a world would look like if Monsanto couldn't patent seed - if farmers could freely replant progeny.  Monsanto might very well use their terminator technology.  But, even if they didn't, they'd almost certainly change their pricing.  Here is what I had to say about the issue a couple months ago:

What do you think will happen to the price of the first generation seed if farmers are able to freely replant the progeny?  
As Steven Landsburg points out in his wonderful (and recently re-released) book The Arm Chair Economist the indifference principle must always be at work.  The principle suggests that at current prices, (the marginal) farmer must be indifferent to buying Monsanto seed given that he cannot replant the progeny and must buy seed again next year.  However, if the Supreme Court rules that Monsanto does NOT own the progeny, then the value of the seed to farmers rises since they can re-use the seed.  The marginal farmer is no longer indifferent.   For the indifference principle to hold (i.e., for equilibrium to be restored), the price must rise.  Monsanto will charge more for it's initial offerings if farmers can freely replant.      
As an analogy, consider the market for textbooks.  Bailey and I wrote an undergrad textbook on Agricultural Marketing and Price Analysis a few years ago (in which we somewhat ironically discuss the indifference principle).  Buying a new copy of the book is pricey ( has the current price of a new copy at $97.41).  What do you think would happen to the price of the initial offering of the textbook (i.e., the price of a new copy) if Bailey and I (and the publishers who actually sets the price) could receive royalties when the used textbook is resold in bookstores after the semester?  The initial price for a new book would almost certainly fall.  
The Monsanto case is simply this example working in reverse.  

I'll conclude by admitting that I'd probably write fewer books if anyone could copy or distribute my work without attribution or compensation.  I think a lot of geneticists and plant scientists would feel similarly about their work.