Genetically Modified Justice: Why the Supreme Court Ruled for Monsanto

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.

 

Article Tabs

We yearn for a new politics but worry that our democracy, like that Antarctic ice shelf, has reached its tipping point.

The Ellison-Lewis legislation would amend the National Labor Relations Act to give workers a range of legal options if they feel discriminated against for trying to form a union.

Under the American City County Exchange, local and city councils will see more privatization, more public services sold off or cut, and decision-making increasingly in the hands of large corporations far away.

In "False Dilemmas," Christina Laskaridis explores the origins and impacts of the debt crisis – looking at who engineered the bank bailouts, how they were able to get away with it, and what Europe has been left with.

We can further see that there is a war on the underclass in the form of police militarization, as the Pentagon actively prepares for civil unrest and a breakdown of society.

Nestlé is draining America's vital groundwater resources at a stunning rate – with 29 water bottling facilities across North America, it pocketed $4 billion in revenue from bottled water sales in 2012 alone.

Posted 1 day 4 hours ago

The British Medical Association joins a growing movement of institutions – including dozens of universities, foundations and even the World Council of Churches – dumping oil, coal and gas holdings.

Posted 4 days 33 min ago

Despite the 828-page Dodd-Frank Act, the derivatives pyramid has continued to explode to a value now estimated to be as high as $2 quadrillion.

Posted 4 days 21 min ago

Former CEO Artie T. offered good benefits and fair pay – which is why employees are striking and customers are boycotting the market chain across the northeast, demanding to get him back.

Posted 2 days 8 hours ago

The Coalition for Court Transparency, which advocates greater openness and accountability in judicial branch, launched a campaign to install TV cameras in the chambers of the Supreme Court.

Posted 2 days 9 hours ago

The report prescribes concrete actions the world's biggest 15 economies must take to keep warming below two degrees Celsius.

“I already won. As soon as the journalists were able to work, everything that I had been trying to do was validated. I wanted to give society a chance to determine if it should change itself."

A protracted period of poverty, mass unemployment, social exclusion, greater inequality and collective despair is facing Europe since the austerity policies adopted in recent years. And it's only getting worse.

If we do not act now to reduce the pollution we are putting into the air, we will face irreversible climatic changes which will come at a catastrophic cost.

Canadian Tar Sands Declared Illegal by Alberta Residents

Residents in Alberta say tar sands mining is not only dangerous but illegal because it violates the rights laid out in Treaty 8, an agreement signed in 1899 by Queen Victoria and various First Nations.

Sign Up