We guess the guy who came up with the name "terminator" gene won't be getting his bonus this year. It's one of the reasons that a plague of plaintiffs lawyers is now descending on the agricultural biotech industry.
The unfortunately ominous sounding term is in fact used to describe a method by which biotech companies produce seeds that are infertile after the first generation, thereby helping them recoup development costs through ongoing sales to their farming customers. By allowing companies to protect their intellectual property, such a technology should prove an enormous spur to agricultural innovation, which has already done so much to increase crop production around the world.
But an incoming litigants' plague is painting a very different picture: One of a world in which the rights to all important crops are held by a handful of large multinational corporations, such as DuPont, Monsanto and Novartis. On Monday it was announced that a coalition of biotech adversaries would file multibillion-dollar antitrust lawsuits in as many as 30 countries later this year. Twenty different American law firms will reportedly be arguing on their behalf.
And the publicity will be handled by none other than--Jeremy Rifkin.
Longtime readers of this page will recognize Mr. Rifkin. If memory serves, the indefatigable promoter first opened his biotech tent by filing a lawsuit in 1984 against a University of California experiment to fight frost damage in a field of potatoes using genetically altered bacteria. Years of similar Rifkin-driven court cases against biotech ensued, until the issue burned itself out, with biotechnology going on to become one of the showcase industries of late-20th-century America.
The plague of lawyers, meanwhile, is led by corporate shakedown artist Michael Hausfeld. He has sued Exxon for the Valdez oil spill, Texaco for alleged racial discrimination, Swiss banks over Nazi-era Jewish claims, and the makers of infamous "Fen-Phen" diet pill. The German conglomerate BASF has fallen victim to Mr. Hausfeld on two entirely different counts: alleged vitamin price fixing and the use of slave labor during the Nazi era.
The plaintiffs in these cases are something called the National Family Farm Coalition, plus individual farmers from around the world.
Of course bigness is not badness in legal terms, so the plaintiffs and lawyers know they have to point to some practices as "abuse" of a dominant position. But the best they seem to be able to come up with is a specious semantic distinction regarding the nature of the agreements between biotech companies and farmers.
Seeds are not really "sold" anymore, Messrs. Rifkin and Hausfeld both told us; they are effectively "leased." But a lease is after all a form of purchase: of a service, not a piece of property. And we don't see how it would be any harder for dissatisfied customers to stop "leasing" than stop "buying."
Nor, apparently, do most knowledgeable observers. Shares of most of the companies that are potential targets in this lawsuit don't seem to have been affected by the announcement, with analysts describing the action as both "ludicrous" and a "publicity stunt." The global seed market, they observed, is not very concentrated.
It's early in the development of this industry, which may make them vulnerable to spooky lawyers' tales, but that also suggests a normal course for their social maturation. Obviously, the seed companies want to protect their youthful intellectual property. But like the software and entertainment people before them, they're going to find there are limits to what you can do. Push too hard and you end up swamped by bootlegs. We suspect the high-tech seed people will eventually learn from Microsoft: Give farmers a broad, open-ended license to use a particular seed variety, then try to keep them coming back with upgrades.
Of course, any such lawsuit is a try-the-lock operation, and it's conceivable that a court or jury will tumble in one of the international venues. If that suppresses the development of this business, the losers will be the billions of people around the world for whom biotechnology promises a better life. Even in the developed world, after all, it wasn't so long ago that food was scarce and expensive enough that "a chicken in every pot" was actually a resonant political slogan.
If some 16 years after he sued his first potato field Mr. Rifkin still worries about what you get when you cross a firefly with a plant, he's free to do so. For our part, we're more worried about what you get when you cross a scaremonger with a tort lawyer.
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