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Civil Disobedience in The Garden  

Plants As Natural Protesters

Frank Morton

People have a natural sense of fairness, but only when the unfairness doesn’t favor them. This is why juries are chosen from pools of people who have no connection to the judged and no stake in the outcome, beyond the purpose of seeing justice served. When we see unfairness that doesn’t favor us, there is a natural response toward withdrawal of cooperation. Many animals share this response, and it has been demonstrated across species in laboratory settings. When rewards for effort are unfairly meted out, everything from monkeys to rats to birds are demotivated to cooperate, and are inspired to creative means of protest, often by upending the experiment. Such are the animal roots of civil disobedience.

Because most people have nothing to do with plant breeding and its rewards, but everybody eats and understands that crops require ongoing improvement, it is telling that so many find the idea of patents on plants and animals reprehensible, not to mention puzzling. How can one get a patent on a living being? Isn’t DNA a product of nature? Isn’t any living being a sum of its own evolutionary history? Who can own that? Because someone mediates in genetic selection, or mutates one billionth of a creature’s genetic code, or notices a natural mutation or variation as “useful,” does that suggest the same kind of ownership that we can have over a device that we created piece by piece with our own hands? If we extend the principle underlying plant and animal patenting to people, any patient undergoing CRISPR therapy for a genetic disorder would become patented material in the hands of doctors. I don’t think the general public is ready to accept that idea, but I’m sure that someone who stands to gain by it is already justifying it in their own minds.

As subjects in a new experiment in social order, where for the first time living evolutionary processes and the beings created by them are subject to corporate ownership, many of us feel the need to resist what seems unfair. It seems unfair that traits of living beings can be patented, wholly owned by an entity that did not in fact create the trait. Genes functioning within an organism create all traits, as surely as tectonic forces within the Earth create the Cascades. Discovery and observation are distinct from invention, which is the domain of patenting. So, as subjects in an unjust experiment, how might we engage in protests that demonstrate our unwillingness to cooperate with unfairness?

My way is to pursue my work in plant breeding as if there are no obstacles. I treat Salanova® lettuce as if it doesn’t exist. The same goes for any plant with a patent notification on it–they are irrelevant to my purposes, dead to progress. Their owners are castrated in relation to my seed history. I don’t know what I am missing, I don’t care about it, and I mock its cost to those who do. Which is a pity, because I’m sure we might have made beautiful children together. So it goes. But I admit I have spent time contemplating how easy it would be to register disapproval with plant patenting by making a public show of plants themselves breaking the law, naked. Nothing could be more natural.

Civil disobedience around patented plants requires very little effort and the risk of pepper spray or jail time is pretty remote. This is something anyone can do in the privacy of their own walled garden, or out on the street, or at a science fair, or (especially) a seed swap. The educational opportunities and the chance to engage the public’s sense of justice are widespread, and a little bit fun for mischievous gardeners. To find your personal expression of disobedience that best suits your time and temperament we need only turn to a bag of patented seed and read the label which outlines a long list of things you may not do with the seed.

Let’s see, you may not grow the plant for any purpose other than to produce a crop for sale or consumption. If you make art with it, there could be trouble. Specifically, you may not: Grow the crop for seed. Sell the seed. You may not use the seed for breeding or crop improvement purposes. You may not grow the seed in a trial and publish the results without the consent of the patent holder. You may not use the seed for research purposes or publish the results of such research without consent of the patent holder. No taste testing, no varietal comparisons, please!

So to stage a small protest on behalf of seed freedom, perhaps the easiest of all demonstrations would be to allow Salanova® or some other patented lettuce to complete its life cycle in the garden. Just let it happen. With no help from you, that lettuce will just stand there and break its own chains, break the terms of its own legal status, by going to seed. It might be worth inviting gardening friends over to see it happening, or maybe a local garden writer looking for some red meat for a column. Certainly you should post pictures of it happening in real time. A time-lapse video would be fantastic.

To step it up a notch, you might let two patented plants exchange pollen in the garden by letting them flower side by side. It is hard to tell at what point the gardener might actually be implicated in committing patent infringement–perhaps just letting the plants flower in one another’s company is an infringement on the patent owner. Maybe it is when the seed becomes viable, or at the time it goes into an envelope. Maybe it is when the seed is exchanged at a seed swap, or is that when the crime becomes a conspiracy? And if someone should find the seeds that were created by cross pollination, and allow those to go to seed, and collect those seeds...well, surely someone would be guilty of breeding with patented plants.

And would you be found guilty by a jury of your peers? Well, that’s the risk of civil disobedience. Though it sounds ridiculous in this case, often protesters are found guilty by their peers, only to be found not guilty on higher grounds by courts of appeal or the Supreme court. And that is how precedents are set, and bad laws overturned. The Lovins case comes to mind. Rosa Parks on a bus. Who can imagine today being told where to sit? Civil disobedience makes social change.

Originally published in the 2017 Wild Garden Seed Catalog.

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