Read

Search form

Genetically Modified Justice: Why the Supreme Court Ruled for Monsanto

Genetically Modified Justice: Why the Supreme Court Ruled for Monsanto
Fri, 5/17/2013 - by Robert Barnes
This article originally appeared on Washington Post

Farmers must pay Monsanto each time they plant the company’s genetically modified soybeans, the Supreme Court ruled Monday, rejecting an Indiana farmer’s argument that his un­or­tho­dox techniques did not violate the company’s patent.

Farmer Vernon Hugh Bowman asserted that because the company’s herbicide-resistent Roundup Ready soybeans replicate themselves, he was not violating the company’s patent by planting progeny seeds he bought elsewhere. But the justices unanimously rejected that claim, with Justice Elena Kagan writing there is no such “seeds-are-special” exception to the law.

“Bowman devised and executed a novel way to harvest crops from Roundup Ready seeds without paying the usual premium,” Kagan wrote for the court, rejecting what she called Bowman’s “blame-the-bean defense.”

“Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops,” Kagan wrote.

While the case was about soybeans, the broader issue of patent protection is important to makers of vaccines, cell lines, software and other products that might be considered self-replicating.

Corporations worried that their investments would be threatened if patents were honored only on the first sale of self-replicating products, a legal doctrine called patent exhaustion. It means companies have no control over their products once they have been sold.

But Kagan warned that the Monsanto decision was a limited one and did not address every issue involving a self-replicating product.

“We recognize that such inventions are becoming ever more prevalent, complex, and diverse,” Kagan wrote. “In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose.”

But Kagan said the court concluded: “We need not address here whether or how the doctrine of patent exhaustion would apply in such circumstances.”

Kagan’s sprightly written opinion aside, the court’s reluctance to address those broader issues raised questions about why it accepted the case, since lower courts had also ruled for Monsanto.

As the justices had indicated at oral arguments in the case in February, they believed Bowman’s practices threatened the incentive for invention that is at the heart of patent law.

If someone is able to copy a patented product simply by planting it and collecting its progeny, “a patent would plummet in value after the first sale of the first item containing the invention,” Kagan wrote. “And that would result in less incentive for innovation than Congress wanted.”

Bowman acknowledged that his techniques were unusual.

The farmer purchased Roundup Ready soybeans for his first planting of the year on the 300 acres he farms in southern Indiana. They are so named because they are resistant to Roundup, Monsanto’s omnipresent weed killer, which has revolutionized farming.

At the time of the purchase, Bowman agreed to the company’s demands that he not save seeds from the crop for future planting.

But for a second planting, which Bowman said is riskier because of the weather, he said it would not be cost-effective to pay Monsanto’s premium.

So instead he bought commodity soybeans, which are usually used for feed, from the local grain elevator. He believed those beans would also be Roundup Ready because about 90 percent of soybeans grown in the country are. Bowman acknowledged that he did save seed from those crops and bought more commodity beans for subsequent plantings.

Monsanto said Bowman’s plantings violated the company’s patent. The U.S. Court of Appeals for the Federal Circuit agreed and told Bowman to pay nearly $85,000 in damages.

Kagan noted that Bowman conceded that the exhaustion doctrine does not allow him to “make” a new product based on Monsanto’s invention.

“But it was Bowman, and not the bean, who controlled the reproduction (unto the eighth generation) of Monsanto’s patented invention,” Kagan wrote.

The case is Bowman v. Monsanto.

Originally published by Washington Post.

 

Add new comment

Sign Up

Article Tabs

Bay Bucks, alternative currencies, barter economy, alternative economic systems, Chong Kee Tan, community resilience, sharing economy, Swiss WIR

The Bay Area currency operates a commercial barter system – where businesses with unused inventory or excess capacity "deposit" their excess into an exchange, and “withdraw” other businesses’ excess goods and services instead of money.

climate crisis, climate information, Climate Feedback, accurate climate coverage

Climate Feedback brings together a global network of scientists who use a new web-annotation platform to provide feedback on climate change reporting.

Black Lives Matter, ACLU of Oregon, state surveillance, surveillance programs

Monitoring the social media use of BLM activists is an example of "how the level of trust between law enforcement and communities of color has been so damaged," the civil rights group says.

Panama Papers, tax avoidance, tax shelters, corporate tax evasion, Oxfam

The names on the list of "Broken At the Top" are like a who’s who of big business – and some of the headline figures are simply staggering.

act out, occupy, spoken word, poetry, Harriet Tubman, 20 dollar bill, money in politics, regulation, cost benefit analysis, human life, cost of life, value of life, Public Citizen, Amit Narang, corporate accountability, corporate malfeasance, May Day, Int

This week, regulation is the name of the game if you want to hold corporations accountable and keep them in line with the interests of people and planet. Sadly, there's one serious hurdle standing between us and regulation.

Panama Papers, tax evasion, tax avoidance, tax shelters, London corruption, HSBC Bank, LIBOR scandal, tax rate-rigging scandal, George Osborne, David Cameron, BBC corruption

The British elite's empire did not end – it just went offshore.

Posted 6 days 16 hours ago
Democracy Spring, Democracy Awakening, money in politics, Voting Rights Act, Bernie Sanders

“We the people demand a democracy free from the corrupting influence of big money and voter suppression,” they shouted. “We demand a democracy where every vote is counted and every voice is heard. Democracy Spring!”

Posted 6 days 16 hours ago
migrant crisis, East African migrants, migrant smugglers, organ trafficking

A week ago, on April 17, 400 East Africans drowned in the Mediterranean Sea after their boat capsized on the way to Italy – and when the numbers get this big, we forget that they are individual lives being lost, like this, every day.

Posted 3 days 15 hours ago
Robin Hood tax, financial transactions tax, progressive taxation, Bernie Sanders

Wall Street Insiders who trade on confidential information unavailable to small investors don’t improve the productivity of financial markets. They just rig the game for themselves.

Posted 6 days 16 hours ago
Panama Papers, tax avoidance, tax shelters, corporate tax evasion, Oxfam

The names on the list of "Broken At the Top" are like a who’s who of big business – and some of the headline figures are simply staggering.

Posted 1 day 9 hours ago

In recent weeks, thousands of people marched and were arrested on the steps of the Capitol demanding that the people’s voice be heard: that we the people, not money, be the driving force of our government.

Panama Papers, tax evasion, tax avoidance, tax shelters, London corruption, HSBC Bank, LIBOR scandal, tax rate-rigging scandal, George Osborne, David Cameron, BBC corruption

The British elite's empire did not end – it just went offshore.

With more than 1,300 people arrested on the steps of the Capitol earlier this month, the Democracy Spring campaign pulled off one of the largest acts of civil disobedience this century.

act out, occupy, spoken word, poetry, Harriet Tubman, 20 dollar bill, money in politics, regulation, cost benefit analysis, human life, cost of life, value of life, Public Citizen, Amit Narang, corporate accountability, corporate malfeasance, May Day, Int

This week, regulation is the name of the game if you want to hold corporations accountable and keep them in line with the interests of people and planet. Sadly, there's one serious hurdle standing between us and regulation.

solar energy, rooftop solar, California clean energy policies, National Renewable Energy Laboratory, carbon emissions, San Francisco solar policy

Starting Jan. 1 of next year, new commercial and residential buildings here up to 10 stories high must install rooftop solar systems for heat or electricity – making San Francisco the first major U.S. city to enact such legislation.