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Supreme Court takes on case of farmer versus Monsanto

The Supreme Court has decided to take on the case of Bowman vs. Monsanto. This case could have major repercussions for the biotechnology industry and what is patentable and enforceable depending on the scope of the decision.

In this day and age a majority of seeds sold in the US to farmers have some sort of genetic modification, which is patented. One specific modification makes crops resistant to Roundup, a popular herbicide. With this gene, the crops are able to survive while weeds removed. The tradeoff with using these roundup resistant and most other genetically modified seeds is that as a farmer, one cannot legally save seeds from year to year. One has to purchase new seeds from Monsanto every year. This makes even the use of seeds from grain elevators tricky as most crops/seeds contain some sort of genetic modification thanks to cross-pollination.

The case stems from Mr. Bowman purchasing seeds for a late second crop from a grain elevator rather than Monsanto directly. Late-season crops are risky as the yield is smaller, so it made no financial sense to buy directly from Monsanto. Grain elevators don’t sell it as seed, but rather “outbound grain.” Generally it is all of lower quality; however, the probability is that even these contain the Roundup resistance gene since that’s what a majority of farmer’s plant.

Mr. Bowman’s defense is relying on the claim of patent exhaustion – “the concept that once a patented object is sold, the patent holder loses control over how it is used.” The Supreme Court affirmed this principle in 2008 when it ruled that once Intel sold computer chips containing patented technology from LG to computer manufacturers, LG no longer had any right to how those manufacturers used those chips in computers. Analogously, the defense argues that once the beans are sold to the grain elevator, Monsanto has no more right to their patents.

Monsanto and it’s allies argue that exhaustion only applies to the particular item sold and that Bowman was making illegal copies. The argument hinges on whether the exhaustion principle extends to an item that is self-replicating – a big sticking point for many biotechnology patents.

The decision will be an important one to monitor as it could possibly affect the patents of not just Monsanto, but all types of biotechnology companies, software companies, and others. Many companies have filed briefs in favor or against the defense.

More details about the case can be found at the following links:

http://www.npr.org/blogs/thesalt/2013/02/18/171896311/farmers-fight-with-monsanto-reaches-the-supreme-court
http://www.nytimes.com/2013/02/16/business/supreme-court-to-hear-monsanto-seed-patent-case.html
http://www.scotusblog.com/case-files/cases/bowman-v-monsanto-co/

 

Posted by: Tomasz Bakowski
Photo credit: U.S. NPS

 

 

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