From a Judicial Decision by Judge Joseph Story in 1817:
“All that the law requiresis that the invention should not be frivolous or injurious to the well-being, good policy, or sound morals of society. The word ‘useful,’ therefore, is incorporated into the act in contradistinction to mischievous or immoral. For instance, a new invention to poison people, or to promote debauchery, or to facilitate private assassination, is not a patentable invention.” Lowell v. Lewis, 15 F. Cas. 1018 (C.C.D. Massachusetts, 1817)
Judge Joseph Story
Imaginably, one central question likely to be asked on Judgment Day is: Were you part of the problem or were you part of the solution to the problem? If people have pursued money and profit—or assisted in that pursuit—without regard for the way the goal is gratified, the test would be failed.
So far, Monsanto would not pass the test, and that means their executive decision makers would not pass the test either. They might want more time to show what they can do, but that would not be a credible request based on established history and the liberal amount of time already provided them.
No reason exists to believe they will be any more prudent, wise, honest, or honorable in the future than they have been over the past thirty years since they started developing transgenic seeds. For example, they and their allies have criticized the Seralini long-term feeding study in France for using erroneous protocols, but the study intentionally used the same protocols commonly used by Monsanto in its own studies. Only the time frame was changed.
Now that the Journal of Food and Chemical Toxicology has rescinded its publication of the Seralini two-year study over the claim of insufficient protocols, Monsanto’s studies should be required to face the same standard, but their studies have not been rescinded. The question is: if the protocols are wrong for a two-year study, why should they be sufficient for a 90-day study, and should not a 90-day study be found to have been too short? Political pressure from Monsanto and its allies was brought to bear against Seralini and his research, but Seralini and his compatriots lack equal capacity to bring political pressure against Monsanto. The purpose of the action taken against the Seralini study was to prevent its use in court against Monsanto. Unless it is published in a peer-reviewed journal, no study has the teeth needed to be used in court.
If Monsanto was interested in the long-term truth, they could have done the Seralini study themselves years ago, and they could have done it using multiple protocols including a variety of animals, not just Sprague-Dawley rats. Further, if governments were not subservient to them, the governments, especially the U.S. government, would have been able to require Monsanto to pay for independent studies on the issue. The behavior of both Monsanto and the government shows they have been more interested in hiding the truth than they have been in illuminating it in the interest of food safety. That is the only conclusion possible when the Monsanto studies are too short to provide essential information prior to product release and also prior to receiving a patent.
This raises a question about how much time people and companies should be given to prove the value of what they do—if proving it requires the use of the uninformed and non-consenting human population as their lab rats. The answer should be: none. Unequivocally, they should prove the social value of their products before they are given patents and before any of the products are released publicly.
A secondary Judgment Day question might be: Did you advance any projects that were more destructive and poisonous to the public health and the environment than it was beneficial? If this question was asked it would imply anything poisonous would be permissable as long as offsetting benefit is provided, but who should be sentenced to eat Monsanto’s toxins, allergens, and nutritionally-impaired food just so farmers can save money on the cost of tillage, shareholders can earn a return, and politicians can get campaign contributions?
This question might be asked because many patented products now have unhealthful side-effects and impacts even if they are believed to be generally more beneficial than they are harmful. Reportedly, 50% of medicines have serious side-effects, but when they are offered to people for their intended purpose, the people should be given the chance to know the side-effects, and they should be offered the opportunity to give informed consent to the proposed treatment. Depending on the diligence of their doctor, that may have happened. Eaters of transgenic food have not been given a similar opportunity to know about the impacts of eating the food even though the average consumption of it has been estimated to be between 150 and 200 pounds per year.
When drugs are released, the release is accompanied by a statement explaining the dangers, so people can assess the risks and decide for themselves if they want to accept them. Transgenic food laced with Glyphosate herbicide and strange, new proteins should be treated no differently.
With the help of the U.S. government and with Monsanto’s former employees and lauded allies like former Iowa governor Tom Vilsack in key government decision-making positions, Monsanto has not provided any explanation about the dangers associated with the use of their products. Thus, both Monsanto executives and many government officials would also fail the secondary Judgment Day test just as much as the first one. The test itself is not good enough to be used, but nevertheless, they would not pass it, because Monsanto’s products do massively greater harm than any benefit attributed to them.
This issue will be addressed in court when the opportunity is finally made available, but evidence about it is plentiful in the provided bibliography and elsewhere. Internet searching will find many more citations. The search term “Monsanto destruction” entered into a Google search finds 1,520,000 separate results. In fulfilling an educational duty to themselves and their fellow citizens, citizens are encouraged to make searches like this and read the information they discover. It would also be important if the Patent Office was not lax about Judge Story’s standard.
Monsanto has contended: no evidence suggests their food is unsafe and the FDA calls it “substantially equivalent,” but that is easy to conclude when patent rights and research contracting power has been used to prevent any studies adverse to their interests from being made, and when political leverage has been used to have adverse studies rescinded. Monsanto has waged their campaign against opposing research relentlessly. The movie “Scientists Under Attack” documents this campaign. When all the tactics and interrelationships are understood, no reason or evidence exists to believe in the credibility of those who have supported the Monsanto agenda. Arguments more fully explaining the details are available for people to read on this Web site. One article was published in Environmental Sciences Europe on December 1, 2013.
Both the federal government and Monsanto have advanced their poison-dependent transgenic program without requiring thorough, independent, objective, and reliable investigation of the safety claims, and that should be required if Judge Story’s standard were considered important. Included among Monsanto’s promoters over the past three decades have been many in the government— including those both elected and appointed, judges, and Supreme Court justices. They have all been wishful at best and often definitively negligent with the benefit of analytical hindsight and emergent knowledge, but before that prudence should have been required.
Monsanto’s facilitators in government and elsewhere have not made sure the results of their decisions would be benign and beneficial or that the poisonous and destructive aspects would be counter-balanced by some reasonable public benefit beyond the short-term, myopic cost-savings for farmers, profts for Monsanto shareholders, campaign contributions for politicians, and funding for allied researchers and their institutions supporting Monsanto’s agenda.
Arguably, the negligent, short-sighted abuses resulting in global climate change are no worse in total long-term impact than the destruction being caused by Monsanto’s system of agriculture. Not only can the genetic damage be worse over the long-term than it is in its immediate but unseen impacts but in addition, their system has helped to destroy the ability of the soil to sequester carbon. Since one third of the carbon sequestration occurs in the soil, Monsanto is contributing powerfully to global climate change. The agricultural impact is an enormous unadvertised contributor to the problem.
Worse, global climate change can be reversed if people and governments would develop the needed discipline and organizing will, but the effects of Monsanto’s project may not prove to be reversible in all of its most serious impacts. If Monsanto’s products are as corrupting genetically as they appear to be from the studies made so far available, the propects for reversal may be limited, and some studies suggest they will multiply over successive generations. Nonetheless, the prudence rule makes it smarter to stop than to plunge ahead like mad scientists, drunken sailors, or lemmings off a cliff into the sea.
If the findings are confirmed by important research never made in the United States, the impact on civilization and the future of life on the planet will be worse than the use of lead pipes by the ancient Romans or the use of fluoride in drinking water with the effect of lowering the intelligence (IQ) of citizens. Civilization has a promising future only if it can limit dangers and magnify benefits. When the opposite happens, the likelihood of self-extinction increases. When corporate self-interest trumps the needs of the environment and public health despite the caused destruction, demise is the result, and the political system is to blame for it. It allows Monsanto to do as it has done and continues to do.
As part of the observed failure in the United States, Monsanto’s facilitators and allies in the government have failed to monitor the Patent Office to make sure inspectors have been careful in avoiding the patenting of dangerous, destructive, and poisonous products without any of the required social utility or even public warnings and right of informed consent. At the least, they should avoid patenting products they have not thoroughly and carefully studied—with particular focus on long-term consequences.
Diligence in the patent office should be a basic necessity with wishful, uninvestigated science prevented; without that, competent, functional, and moral integrity at the U.S. Patent Office and among its inspectors is AWOL As if by death wish, negligence has been allowed to thrive, but the fault lies more with the Congress and with the management of the budget and the agency oversight in the White House. They have allowed and facilitated the negligence.
Patent examiners and everyone above them in the chain of command have failed to perform the due diligence essential to their jobs. The historical record makes the failure clear, and central in it is knowledge of the position taken by FDA scientists in 1992 before they were overruled by political officials in the Bush-Quayle administration and their appointees.
The political decision-makers favored corporate deregulation over prudent science, investigative diligence, and honest truth. They would have known the view of the FDA scientists, and they overruled it anyway without informing the public about the dangers intrinsic to their actions. The people might now be asked what punishment they think should be appropriate for this violation of the public trust.
In the light of this history, we will see if the Supreme Court wants to start correcting the problem or if they want to persist in the continued perpetration of the parade of past errors. The needed work could start in early 2014 when the Supreme Court can decide to review two lower court dismissal decisions in our lawsuit. The problems caused by Monsanto started almost 35 years ago with the first Supreme Court decision allowing the patenting of a living bacterium. This decision is related to the issues we are raising, so now the justices have a chance to redeem themselves.
The initial failure of prudence was in 1980 with the Diamond v. Chakrabarty decision. This was a 5-4 decision written by Chief Justice Burger and joined by Justices Stewart, Blackmun, Rehnquist, and Stevens. The dissent was written by Justice Brennan, and he was joined by Justices White, Marshall, and Powell.
Immediately after the Chakrabarty decision, Monsanto started work developing transgenic seeds incorporating their Roundup-Ready transgene. Then, the initial failure of biological prudence by the Supreme Court was reinforced in 2001 with their decision in J.E.M. Ag Supply v. Pioneer Hi-Bred International. Monsanto was the decision’s largest beneficiary with the court allowing transgenic seeds to win utility patents the same as mechanical devices or potentially dangerous chemicals and drugs.
The court’s prior failure of biological wisdom and the associated investigative negligence was made worse by the decision 20 years later, and for that reason the decision’s author might want to recuse himself from ruling on our petition to the Supreme Court. If he feels a defensive personal interest in the original decision, he might want to do that, and so might others who joined him in the ruling.
The author of the J.E.M. Ag Supply decision was Justice Thomas, who in prior years had been employed as a Monsanto attorney. In 2001, he did not see prior association with Monsanto as a reason to recuse himself, so he might not now either. Nonetheless, others on the Supreme Court have recused themselves from decisions due to a less direct connection to a case before the court.
In 2010, Justice Breyer recused himself from the Geertson Seed decision because the lower court decision in the case was made by his brother, and Justice O’Connor recused herself from the J.E.M. Ag Supply Decision because of a “possible connection with Dupont.” She played no part in the decision or the consideration of the issues involved.
Recusal standards are liberal for Supreme Court justices. They are not required to live up to the same standards as other judges, though legislation to change that has been introduced in the Congress.
With a better understanding of genetic science, agriculture, and biology among the justices, the decision could not likely have been decided as it was even though the discussion by the court centered around the intent of the Congress in interpreting the requirements related to utility patents. This is a question of technical competence, and that same matter confronts all judges ruling on cases related to transgenic agriculture and genetic science
The same issues are still on the table and will be as long as controversy over transgenic food persists, but since the J.E.M. Ag Supply decision, the knowledge of genetics and epigenetics has improved greatly. This is part of the problem confronted by our lawsuit: Monsanto’s operational understanding of the science is still back in the same place it was when its work on the transgenic seed project was begun 30 years ago.
Social utility cannot be determined without full technical competence and prudence, but the Congress could have subsequently clarified its intent on the granting of utility patents if it had wanted to. That also focuses a question about technical competence in the Congress and their pertinent committee staff. In the Congress as in the White House, decisions on transgenic technology have been governed too much by politics and the power of political money and not enough by the relevant science. Apart from that, the concerns of the FDA scientists would not have been ignored in 1992. The 2001 Supreme Court decision followed the same oblivious pattern set in 1992.
If human civilization is on its way to self-extinction as the result of the decisions made on transgenic technology, that would be the result of political persuasions supported by lobbying and campaign funding from Monsanto and other biotech companies. The question about whether the government or the company is more at fault is a chicken and egg debate, but corporations under the capitalist system are expected to be amoral and self-serving; government officials, in contrast, are expected to serve the public. The trouble is their common interest in money puts them in bed with each other, and democracy is discredited alongside mutually self-serving colloboration and similarly co-optive amorality.
Ultimately, willingness to review both prior Supreme Court decisions will be as much needed as review of the two lower court decisions issued in our lawsuit, but that is not required immediately. The immediate issue is: whether or not we have “legal standing” to bring our lawsuit before a court of law. On that question, both neglected precedents and facts should govern without introducing the prior complexities.
When the opportunity to present evidence about harmful past failures is denied and prevented, a defensive preference to protect both error and failure is inevitably seen. Whenever the pursuit of truth and the redress of past error is suppressed by the courts under sophist contentions about the immediacy of the felt threat or as the result of diversionary assertions, the judiciary and the U.S. governing system are discredited in the eyes of the world or at least among those coming to know about them.
The issue being raised is important to people in all nations and more of them know about it than do in the United States, but U.S. judges may be no more attuned to the issue than most of their fellow citizens. At least, this is a reality judges may not be attuned to understand unless they reflect on the international dimensions of the U.S. reality and study more widely than they are enabled to by the U.S. media. Such reflection does not seem likely if many judges get their knowledge of the world as Justice Thomas says he does: from the Wall Street Journal and AM Radio.
If past failure to discover essential wisdom persists, error would be protected ahead of truth and biological integrity. This is especially egregious against the need to assess the invalidity and social disutility of Monsanto’s patents. When an opportunity is sought to present evidence in a fair forum where Monsanto can present its own evidence without restraint, and yet that is still denied, the governing abuse is compounded. People have long asked what Monsanto is hiding, but now the question is: what do two U.S. courts want to hide and on behalf of whom do they want to hide it.
If Judge Story was still alive and standing strong for the thinking he revealed in 1817, he would not likely agree with either lower court decision resulting in our petition to the Supreme Court, but his concurrence or dissent from the two Supreme Court decisions would depend on his command of the science as well as his grasp of the need for biological prudence. In that, the matter would be the same as it was for the justices participating in the 1980 and 2001 decisions.
All four cases confront the role of morality, prudence, investigation of the facts, and the necessity of informed wisdom, while the two lower court decisions in our lawsuit turn on the centrally important role of the ignored precedents stated among the arguments of our attorneys at the Public Patent Foundation.
Most important, beyond the above issues is the need for many people to stand up against the continuing cult of pro-corporate judicial mystification. That is as damaging to admirable U.S. democracy and its judicial system as the failures of scientific competence, fact investigation, and examination of pertinent precedents. Decisions need to be made understandable to the people while also addressing the public need, and efforts in that direction have been made. The decision in Bowman v. Monsanto was an example. In that decision, the effort was made to clear and unconfusing even if the decision changed nothing and could have been anticipated from the moment the lawsuit was first filed.
The question now is whether the justices will want to pursue a path of publicly beneficial juridical correction in the current case. Few cases and maybe none ever before the court at any time in the past or the present have been more important or more seminal in establishing foundational wisdom under human civilization. This will become clear even if it has eluded news editors and others up to the present.
If reparative opportunity is not seized now in relation to this lawsuit, another one raising the same issues will need to be presented as soon as possible. Every day greater damage and destruction occurs as the result of Monsanto’s transgenic agricultural project, and no one can yet be sure when the point of failsafe will be passed. Unlike the civil rights struggle in the past, this matter cannot be permitted to drag on for a century or even a decade without being addressed.
In the end, U.S. negligence may need to be addressed by other nations collectively or the United Nations if the United States persists in putting corporate interests ahead of the essential science and the protection of the Commons. That would be like an intervention against a self-destructive person. If such an intervention is required, as may be likely under the reigning circumstance, the result will be increasingly embarrassing and destructive of U.S. international standing in the court of world opinion.