Everyone is familiar with Roundup®, arguably the most well-known of any herbicide in the world and my favorite gardening tool. What may be less well known is that Monsanto has created a line of genetically modified organisms (GMOs), which are resistant to their famous herbicide. Called Roundup Ready®, soybeans in this product line can essentially take a bath in Roundup and still grow up to be healthy soybeans. Monsanto charges a lot more for these soybean seeds but farmers apparently make up the difference in their yields, as they can use Roundup to kill off competing weeds. Farmers also agree not to use the new growth seeds without paying Monsanto a royalty for their technology or resign to simply buy new seeds the following year. As such, Monsanto effectively controls a large swath of soybean production, and the herbicide market that controls soybean weeds.
One farmer attempted to skirt Monsanto’s royalty scheme. He went to his local grain silo and cheaply and legally bought random soybean seeds, gambling that at least some of these random seeds were descendants of the Roundup Ready® soybeans. He treated his random soybean seed field with Roundup®, effectively killing off all the non Roundup Ready® soybeans. Having no contractural obligation preventing him from using the new seeds, he eventually developed a supply of Roundup Ready® soybean seeds without ever paying Monsanto for their technology, arguing that the he was not responsible for soybeans doing what soybeans do naturally – making more soybean seeds. Monsanto naturally disagreed and the patent case went all the way to the Supreme Court, with the Court siding unanimously with Monsanto. The Court’s opinion stopped short of applying their verdict to all self-replicating entities, limiting the decision in this case to preventing individuals from replicating patented products (nice NPR summary article)
Fast forward to humans. John Holmlund provided a nice summary of a recent closed-door meeting at Harvard Medical School of a group of leading genetic researchers whose reported goal would be to synthesize (make from scratch) an entire human genome in the next 10 years, perhaps even creating novel sequences of human DNA resistant to various (or all) diseases. The novel sequences come close to a Roundup Ready® human. Who will own the disease-resistant human DNA sequences?
To move this closer to the Monsanto soybean example, suppose the Harvard group formed a private company called Humansanto and they developed a human antiviral drug that effectively disabled any virus, at the cost of unavoidable continuous low-grade, flu-like symptoms in the humans that took the drug. Humansanto then invented a human genome sequence that made an individual and her descendants resistant to the side effects of their antiviral. While it seems reasonable for the individual receiving the initial genetic treatment to pay Humansanto, should all of her descendants pay as well? Following the current Monsanto ruling, the answer would be yes.
It would not take too much imagination to turn this into a good genetic terrorism novel or movie where the side effects of the antiviral drug are intentionally far worse, or the evil corporation develops the actual deadly virus, all preventable, of course, with their modestly priced DNA sequence.
It seems unfair that Monsanto (or Humansanto) is not equally obligated to pay a similar royalty to the Original Holder of the patent on soybeans (or humans).