Tuesday, February 26, 2013

Judges and Knowledge

The Supreme Court held oral arguments in Bowman v. Monsanto.  Here is one of the questions asked by Chief Justice Roberts:
Out of the gate, a plurality of justices appeared concerned about the policy implications of a decision in favor of Bowman.
Chief Justice Roberts: Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?
There are several ways to answer this question: (1) an innovator could use contract law to ensure a better market structure; (2) patent rights are rarely sufficient alone to ensure profit; and (3) that soybeans are not really fungible in the way that you might think. The Court already knew the first two answers wanted to explore the third.
One of the things that amazes me about the court system is how judges rule on all sorts of things they really know nothing about.  I'd point out to Chief Justice Roberts that before 1995 or so, every seed company spent money to try to improve the seed, even though anybody could grow more and have as many of those seeds as they want.  Monsanto was the first company to patent seed technology.  Farmers could always save the seed before that, and yet companies still spent money to develop better seeds.  Why?  Because selective genetics will gradually increase the potential yield of the seed, and everybody wanted to make the seed better and better.  Sure, you could save the seed from the year before, but it was identical to what you grew last year.  Meanwhile, your competitors were busy developing newer varieties which should be better than what you have.  If you improve the seed, farmers will buy it because it is better than what they had.

The question by Roberts is just plumb full of conservative bullshit as to why nobody would ever develop new drugs if they couldn't get windfall profits because of patent protection.  Unfortunately, those companies spend way more time trying to get those patents extended as opposed to developing better breakthroughs.  Conservatives sure understand perverse incentives when it comes to the welfare state, but they never seem to see them when it comes to business practices.

I don't believe Bowman will win the case, and I don't really think that he definitely should, but it would be nice if the justices had any idea of what the world was like before Monsanto patented GMO seed.

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