Justices skeptical of farmer who planted patented Monsanto seeds

[naaman fletcher]

Source: LA Times

WASHINGTON — In a closely watched patent case, Supreme Court justices appeared ready to dash the hopes of an Indiana farmer who claimed the unfettered right to plant the next generation of Monsanto Co.'s genetically modified soybeans.

The justices strongly suggested in oral arguments Tuesday that they would agree with Monsanto that its patent protection covers not just the first planting but also seeds that are generated later from any plantings.

"Why in the world" would any company invest millions of dollars in creating a new seed if a farmer could buy one and freely reproduce it, Chief Justice John G. Roberts Jr. asked.

Mark Walters, a lawyer representing Indiana farmer Hugh Bowman, argued that a patent holder "exhausts" his rights after selling the product.

Read more: http://www.latimes.com/business/la-fi-court-seeds-20130220,0,7067443.story

---

bummer

[MynameisBlarney]

1. I guess

"Justice" Roberts has no concept of how farmers make a living.

[msanthrope]

2. Ah..."exhaustion doctrine." This case will be an interesting read, no matter how it comes down.

I just realized that I am, indeed, a legal nerd.

[DeadEyeDyck]

27. does that apply to a book? nt

[msanthrope]

29. Does what apply to a book? nt

[Kelvin Mace]

3. OK, here's the scenario 40 years hence

You are cured of a debilitating neurological disease thanks to gene therapy.

Now the company wants you to pay for each child you have, since they will benefit from the gene therapy as well.

This is the precedent that will be set by this case.

[Ian David]

4. I would argue that the next generation of seeds has undergone random mutations...

... based in part upon the environment in which the farmer has planted it, and therefore represents a novel organism that differs from the original, patented one.

[msanthrope]

7. The lower courts rejected that argument--

http://www2.bloomberglaw.com/desktop/public/document/Monsanto_Co_v_Bowman_657_F3d_1341_100_USPQ2d_1224_Fed_Cir_2011_Co

[Ian David]

11. Well, at least my idea was good enough that someone actually tried to use it. n/t

[msanthrope]

18. Here's a pretty good article on the case....clear delineation of the issues.

http://www.scotusblog.com/?p=159520

[Ian David]

34. Thanks! n/t

[Ligyron]

5. HA! I'm skeptical of Justices Monsanto planted

Seriously tho', I understand companies need some patent protection to make it worth while to develop a product in the first place, but if Monsanto weren't being such deliberate pricks with their business model, I for one might have a bit more empathy.

[naaman fletcher]

6. Yup, that's how I feel

That being said, it seems as though what this guy is doing is ok as long as he is not replanting the seeds i.e. he is only planting them once.

[msanthrope]

19. Looks like Bowman didn't buy the seeds from Monsanto--

http://www.scotusblog.com/?p=159520

[Poll_Blind]

8. "An Obama administration lawyer joined sides with Monsanto..."

Quelle surpise!

PB

[msanthrope]

14. Why wouldn't the Obama administration agree with the lower court's ruling

on exhaustion doctrine?


Monsanto may be 'evil' but we don't decide legal doctrine based on that. This is a fairly technical application of patent law.

Why is the Obama administration wrong? I think Bayh-Dole is worth upholding.

On edit--sometimes, the law makes strange bedfellows. You don't always get to make law with angels.....

https://supreme.justia.com/cases/federal/us/432/43/case.html

On edit again....if you take a look at the amici, the Wisconsin Alumni Research Foundation, Association of University Technology Managers (AUTM), Association of Public and Land-grant Universities, Association of American Universities, The Regents of the University of California, The Board of Trustees of the University of Illinois, University of Florida, Duke University, Emory University, University of Georgia Research Foundation, Inc., Iowa State University of Science and Technology, NDSU Research Foundation, University of Iowa, University of Missouri-Columbia, South Dakota State University, NUtech Ventures, University of Nebraska-Lincoln, University of Kentucky, University of Kansas, Kansas State University, Montana State University, and University of Delaware filed in support of Monsanto.

Why are they wrong?

[iandhr]

9. I am surprised they took the case in the first place

[geek tragedy]

10. Could the farmer feed the seeds to his pigs and then use the feces?

Seriously, this is a tangled web here.

[Xipe Totec]

12. Let's patent Alito's DNA and claim his children as property. nt

[LittleGirl]

13. Not sure if you know, Justice Roberts was born and bred in Indiana

sickening.

[unblock]

15. if i buy a puppy from a dog breeder, does the dog breeder own all future generations as well?

[msanthrope]

16. Yes-, they can--depending on the type of sale. nt

[OregonBlue]

17. So what if all the other farmers in the region grew non-Monsanto seed. One farmer grows

Monsanto seed and they all sell to the local grainery.

The other farmers then buy seed from the grainery. According to Monsanto, now ALL the farmers are planting illegally because their might be some Monsanto seed mixed in.

Unless they can add a visual marker to their seed that allows farmers to inspect and cull Monsanto seed prior to planting their seed, I don't see how they are not granting an illegal monopoly. Not just affecting the seeds themselves but on what the grainery is allowed to sell.

[msanthrope]

20. There's the problem with your hypo--the Monsanto farmer cannot sell to the

Last edited Wed Feb 20, 2013, 09:47 PM - Edit history (1)

granary under his licensing agreement....

http://www.scotusblog.com/?p=159520

Edited to add--after rereading the article, the Monsanto farmers are not allowed to sell their seed for replanting, but can sell their seed, apparently for food uses, i.e. to a granary. I was mistaken.

Apparently Mr. Bowman deliberately bought this seed for replanting, and thus, Monsanto is going after him for their interest in the patent.

[naaman fletcher]

22. Ok,

But what if he does in violation of his agreement?

[msanthrope]

23. Monsanto has the right to recourse against him. Monsanto also has a right of

recourse against anyone who buys the seed, which seems to be Bowman.

[OregonBlue]

31. No, that's not what happened.

He was buying seed from the grain elevator he and all the other farmers around sold to. He did it for years. So Monsanto is saying he can't buy from the grain elevator because some of the seed may be Monsanto seed. The LA times piece was very incomplete. The whole thing is at:

http://www.popdecay.com/2013/02/19/monsanto-sues-farmer-for-exploiting-loophole-in-gmo-licensing/15336

He couldn’t reuse his own beans or buy seeds from other farmers who had similar agreements with Monsanto and other companies licensed to sell genetically engineered seeds. And dealers he used to buy cheap seed from no longer carry the unmodified seeds.

So Bowman found what looked like a loophole and went to a grain elevator that held soybeans it typically sells for feed, milling and other uses, but not as seed.

Bowman reasoned that most of those soybeans also would be resistant to weed killers, as they initially came from herbicide-resistant seeds too. He was right, and he repeated the practice over eight years.

[msanthrope]

32. Right--Bowman thought he found a loophole around the patent. He didn't.

He deliberately bought seed sold for feed, and used it to plant. That seed was almost 80% Roundup Ready, and Monsanto went after him for their interest.

He did it deliberately, in order to avoid the cost of the seeds bought under the licensing agreement--and US patent law generally does not allow you to profit in that manner.

[OregonBlue]

37. Not all the seed was roundup ready. Unless they have a way to prove which are their seeds and which

are not, they are interfering with the grain elevators rights and the farmers rights. Why could he not just tell them fine, you come to my farm and extract YOUR seed from what I bought from the elevator. Can they prove which is theirs?

[msanthrope]

38. No--the seed was about 80% Roundup Ready. That's already established in the facts of the

case. As for the grain elevators and farmers rights...what are you talking about? The farmers who legally bought the Monsanto seed entered into a contract, which they kept--they sold for food. The grain elevator sells seed for food, not for planting.

Mr. Bowman doesn't get to run around the patents of others. He deliberately bought this seed, knowing it would contain Roundup Ready soy, and he didn't want to pay the prices that his competitor farmers were paying. Monsanto can and will recover against him.

[riderinthestorm]

21. Seed companies regularly develop and sell seeds that one can store for re-use the next year

In fact, that's the way its been done for... well, centuries. Typically farmers save seeds from generation to generation and the initial seed purchase is so far in the past the issue is moot. But of course in recent times there are a slew of seed companies that sell seeds and modern gardeners and farmers are extremely familiar with seed saving.

Monsanto is simply trying to be even GREEDIER than everyone else and change the farming game imho.

[msanthrope]

24. Well, Monsanto has pretty strict licensing agreements. See, it isn't a typical sale--i.e.

I buy the seed, and the transaction is over and done with it.

It's more like I buy a song or a vaccine....I don't get to reproduce multiple copies for my and others' use.

[riderinthestorm]

25. But they are producers of seeds that are being sold like this under the Burpee name

Seminis, Park Seed, John Sheeper etc as Monsanto has slowly begun buying up other seed companies. I read somewhere that Monsanto now owns the patents on something like 40% of the veggies being grown now. Aside from their massive corn/soybean monopoly, they are slowly encroaching on the vegetable scene.

These are backyard gardeners, small scale growers, heck even larger scale growers - all of these are "typical sales", all of them will now be in jeopardy of being sued by Monsanto for saving and re-using seeds if Monsanto wins this case. Monsanto isn't going after these growers - yet. There's been absolutely NONE of this kind of lawsuit threatened by the other seed companies who have been patenting and selling seeds for decades. This would be unprecedented. These other companies haven't ever looked at their patented seeds as akin to a "song" or a "vaccine" and yes, you could reproduce multiple copies for your own and others' use.

If Monsanto wins this, it will transform how farmers have historically (and I mean centuries now) improved their own produce independently by saving genetically superior seeds for future propagation. Besides, its damn dangerous for one company to own so much of our food source as a monopoly (or nearly so).

Its a terrible precedent. I hold out little hope that the Monsanto-SCOTUS will do anything other than vote in Monsanto's favor but its a terrible precedent when it comes to seeds.

Food monopolies, at the seed level, are an entirely bad idea.

[msanthrope]

28. The monopoly argument isn't relevant to the patent issue, although it's one that

should be explored in other litigation.

There's no evidence that Monsanto is interested in the backyard gardener...heck, why would a backyard gardener use a Monsanto-engineered product anyway? Most seed is unpatented, and if I buy a typical seed packet in a store, nothing restricts me saving seeds and replanting them. Monsanto Roundup Ready soybeans aren't available retail...it's only sold by license.

Can you name a single lawsuit that Monsanto has instituted against a backyard grower, or for inadvertent contamination?

[riderinthestorm]

30. Monsanto has gone after farmers for inadvertent contamination.

Here's one case. There are others
http://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeiser

As for Monsanto going after backyard, small or large vegetable producers I presume that's only a matter of time. Beyond the horses, I commercially grow vegetables for my sister's catering biz, the local green market, and local clients so I'm nervous about this and follow it.

Furthermore, I'd stipulate that you have most likely absolutely used Monsanto products in your backyard garden. Burpee's, a large producer of patented seeds (most of their seed is patented), is actually a Monsanto company and that's just one example of a "major" plant distributor (they're Home Depot's producer IIRC). There are others.

If you don't follow the industry closely you wouldn't know who the parent companies are because, well, it doesn't have the big Monsanto name and you probably just don't know.

Agreed that the monopoly issue isn't relevant to the patent issue - that was simply my opinion tacked on. I see the two issues as closely related however. YMMV.

FWIW, I appreciate your lawyerly interest. Thanks for weighing in. I always love to learn more, especially from pros.

[msanthrope]

33. Sorry, but the defendant dropped his claim of 'accidental' contamination. Read your link. nt

[riderinthestorm]

35. More nuanced than that.

From my link

All claims relating to Roundup Ready canola in Schmeiser's 1997 canola crop were dropped prior to trial and the court only considered the canola in Schmeiser's 1998 fields. Regarding his 1998 crop, Schmeiser did not put forward any defence of accidental contamination. The evidence showed that the level of Roundup Ready canola in Mr. Schmeiser's 1998 fields was 95-98% (See paragraph 53 of the trial ruling[4]). Evidence was presented indicating that such a level of purity could not occur by accidental means. On the basis of this the court found that Schmeiser had either known "or ought to have known" that he had planted Roundup Ready canola in 1998. Given this, the question of whether the canola in his fields in 1997 arrived there accidentally was ruled to be irrelevant. Nonetheless, at trial, Monsanto was able to present evidence sufficient to persuade the Court that Roundup Ready canola had probably not appeared in Schmeiser's 1997 field by such accidental means (paragraph 118[4]). The court said it was persuaded "on the balance of probabilities" (the standard of proof in civil cases, meaning "more probable than not" i.e. strictly greater than 50% probability) that the Roundup Ready canola in Mr. Schmeiser's 1997 field had not arrived there by any of the accidental means, such as spillage from a truck or pollen travelling on the wind, that Mr. Schmeiser had proposed.

[msanthrope]

36. Right--he deliberately used Monsanto's seeds. He should pay for them. nt

[Scootaloo]

26. The problem is the idea of patenting organisms in the first place

As we can see, this idea, that a living thing can be patented as exclusive ant generational property of a person or entity causes clear ethical and economic problems.