Response to Don Boudreaux - Rough Draft

Hi Don,

You asked the following in your Open Letter to me:

Do you, in short, believe that you have an ethical right to grow your own tomatoes with your own resources if you choose – a right that trumps other tomato-growers’ insistence that you instead buy your tomatoes from them?

I've never had tomatoes thrown at me before in a debate, even figuratively, so this is a first. I'm sure it beats being hit with actual tomatoes. :-)

But I wonder if you've asked yourself that very question? And I wonder what your answer to yourself would be?

I wonder that because you seem to be a strong supporter of patents. If so, consider the following. I'm happily and honestly growing my tomatoes using only my own and all completely legal resources. As they're growing away, some tomato DNA from an adjacent field of tomatoes grown from Monsanto tomato seeds blows into my field and inadvertently contaminates the tomatoes that I've planted for next year's seed stock. Unfortunately for me, Monsanto's patent protection on the DNA disallows me from planting and selling tomatoes next year using my own seed stock. These Monsanto patent rights that prohibit me from growing my own tomatoes have been upheld by the Supreme Court:

The US Supreme Court upheld biotech giant Monsanto’s claims on genetically-engineered seed patents and the company’s ability to sue farmers whose fields are inadvertently contaminated with Monsanto materials.

Of course, other tomato-growers who use Monsanto's seeds will be quite happy that I'm stuck buying tomatoes grown by them instead of growing my own. I assume that as a supporter of patent rights that you side with the Supreme Court and Monsanto on this one and you, in short, do NOT believe that I have an ethical right to grow my own tomatoes with my own resources if I choose. At least not an inherent right - Monsanto's patent right trumps any rights I might have to grow my own tomatoes.

Or am I mistaken? Perhaps you're going to tell me that the DNA that trespasses onto my property is not my resource? Perhaps, but then neither is the sun that falls on my crops nor the CO2 that the tomatoes need to grow that blows onto my fields nor the earthworms that migrated from adjacent fields nor the rain that falls from the sky, etc. If you follow that line of reasoning, I'm therefore not able to grow tomatoes with solely my own resources and so your question becomes meaningless. Or perhaps I could grow them in an airtight greenhouse with only artificial lights and sterilized topsoil purchased elsewhere rejuvenated by microbes I buy elsewhere, etc., but such tomatoes would have no chance to be commercially viable making your question still mostly meaningless.

Or perhaps you're a strong supporter of patents except in this case? And cases like it?

Do you support precluding an inventor from using a method he invented independently (and possibly before anybody else) with the sweat of his brow risking his own capital simply because he filed his patent application a nanosecond after someone else filed a patent application for more-or-less the same invention (also invented independently)? This happens quite frequently (though there's usually a bit more than a nanosecond between the applications) and is quite a severe restriction on the freedom and even life of the very slightly slower-to-file inventor.

But that's all well and good: them's the rules and them's the breaks. We've collectively, via the State, decided that patents benefit the collective in aggregate and if some folks are deprived of the fruits of their labors and possibly severely damaged because of that, tough luck - the freedom to use what you've developed is trumped by what benefits the collective. And you support that, right?

To me, a patent is a GOLEM (Government Originated Legally Enforced Monopoly) and GOLEMs are a subset of GOLERTs (Government Originated Legally Enforced Restrictions on Trade). Your support of patents makes you perfectly okay with GOLEMs and therefore at least that type of GOLERT. To paraphrase an old joke, now that we've identified that you're perfectly happy and supportive of the collective placing some restrictions on trade, all that's left is to haggle over the details. :-)

Oh, I have no doubt you'll find some way to rationalize it. Perhaps you'll say "BUT IT'S PROPERTY!" Okay, but then why isn't it property for the other guy who invented it (perhaps he even invented it first, he was just slower to file)? Why isn't it property after 20 years? Or is it property but then it's okay for the State to take it away after 20 years? In which case why wouldn't it be okay for the State to take away any property if it benefits the collective? And if inventions are property, why were they not generally described as property prior to the 1960s, the decade when the World Intellectual Property Organization (WIPO) was founded (with the purpose of getting everybody to think of inventions as property)? Etc.

Applying this to growing tomatoes, perhaps the invention that I invented first using only my own resources but was slightly slower-to-file than someone else was a new-fangled super-duper tomato transplanting system (since I'm a roboticist who develops agricultural automation products, I actually bid on exactly such a system recently). Assuming the other inventor got the patent, it would be illegal to use my invention to grow my own tomatoes. However, I could probably prevent anyone from proving that I was doing so (since I simply wouldn't allow them on my property) and could use my invention without fear of punishment. Would that be unethical? Immoral? Would it matter whether or not I sold the tomatoes?

In thinking about one small aspect (patent considerations) of your seemingly simple question of whether or not I should be able to grow stuff (tomatoes) on my own property using my own resources without any interference from the collective (the State) or subsets of the collective (other growers), more than a dozen questions have already come to mind. That's because your question is not simple. Everything that everybody does affects everybody else and nothing that involves large numbers of people is simple.

My answer to your seemingly simple question of whether or not I should be able to grow stuff on my own property without any interference from others is "it depends."

Sincerely,
Bret