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

The worldwide protest sentiment is not going away anytime soon.

Proposed legislation would eliminate erratic scheduling and extend protections to part-time employees.

A proposed community-owned solar project on an abandoned coal mine in Arizona illustrates how cooperative economics make it possible to stop extracting fossil fuels — without leaving workers behind.

This was the biggest scandal to ever hit the land recordation system in this country, and those who were responsible should be held accountable.

Over 300,000 Internet users contributed to our crowdsourced vision for free expression online in the 21st century. What matters most to the Internet community? Watch this animated video to find out.

A new pamphlet, released today, is an attempt to answer this question – and the case we make is, yes, it not only makes sense to think of planetary control in these terms, but it is essential.

Posted 4 days 18 hours ago

They meet behind closed doors, at five-star hotels, away from the prying eyes of the public.

Posted 3 days 20 hours ago

Mexico's population is now making itself heard – tired of a tiny elite that treats them like subjects rather than citizens, and tired of the criminal gangs that terrorize them and corrupt the political process.

Posted 5 days 21 hours ago

Consumer watchdog groups, payday borrowers and victims of payday theft need to come together to end the practice that creates a never-ending cycle of debt.

Posted 4 days 18 hours ago

"It's a nuisance smell in the area. It's a smell that's traveled quite far," said Jeff Suggs, emergency management coordinator for La Porte, where the company's accident occurred.

Posted 5 days 21 hours ago
progressive tax, tax the rich, taxing wealth, income inequality, wealth inequality, tax reform, millionaire's tax, financial transaction tax

Americans want what 21st century politics has so far not delivered: real options for challenging concentrated wealth.

A new pamphlet, released today, is an attempt to answer this question – and the case we make is, yes, it not only makes sense to think of planetary control in these terms, but it is essential.

Proposed legislation would eliminate erratic scheduling and extend protections to part-time employees.

With a $150 million World Bank loan, the Ugandan government plans to construct roads to service oil companies, provide scholarships for oil workers and fund an oil institute. But what about helping its own people?

While celebrating the historic anniversary in Prague on Monday, thousands of Czechs called for President Zeman to step down.

Sign Up