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The Supreme Court loves Monsanto('s money)

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upreme Court Appears to Defend Patent on Soybean

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WASHINGTON — A freewheeling and almost entirely one-sidedargument at the Supreme Court on Tuesday indicated that the justices would not allow Monsanto’s patents for genetically altered soybeans to be threatened by an Indiana farmer who used them without paying the company a fee.

J. Scott Applewhite/Associated Press

Vernon Hugh Bowman, 75, Monsanto’s opponent.

Christopher Gregory/The New York Times

Monsanto sued Vernon Bowman, in white, after he grew and saved seeds sold by the company.

Peter Newcomb/Reuters

Monsanto’s patented Roundup Ready soybeans are resistant to a popular weedkiller.

The question in the case, Bowman v. Monsanto Company, No. 11-796, was whether patent rights to seeds and other things that can replicate themselves extend beyond the first generation. The justices appeared alert to the consequences of their eventual ruling not only for Monsanto’s very lucrative soybean patents but also for modern agriculture generally and for areas as varied as vaccines, cell lines and software.

A lawyer for Monsanto, Seth P. Waxman, a former United States solicitor general, was allowed to talk uninterrupted for long stretches, which is usually a sign of impending victory.

“Without the ability to limit reproduction of soybeans containing this patented trait,” he said, “Monsanto could not have commercialized its invention and never would have produced what is, by now, the most popular agricultural technology in America.”

“This is probably the most rapidly adopted technological advance in history,” Mr. Waxman said of his client’s product, a genetically altered soybean called Roundup Ready, which is resistant to the herbicide Roundup, also a Monsanto product. “The very first Roundup Ready soybean seed was only made in 1996. And it now is grown by more than 90 percent of the 275,000 soybean farms in the United States.”

Farmers who buy the seeds must generally sign a contract promising not to save seeds from the resulting crop, which means they must buy new seeds every year.

But the Indiana farmer, Vernon Hugh Bowman, who had signed such contracts for his main crop, thought he had discovered a loophole for a second, riskier crop later in the growing season: he would buy from a grain elevator filled with a mix of seeds in the reasonable hope that many of them contained the Roundup Ready gene.

Such seeds are typically sold for animal feed, food processing or industrial use. Mr. Bowman planted them and sprayed them with Roundup. Many of the plants survived, and he saved seeds for further plantings.

Mr. Bowman argued that a doctrine called patent exhaustion allowed him to do what he liked with products he had obtained legally. But lower courts ruled that Mr. Bowman’s conduct amounted to patent infringement.

A federal judge in Indiana ordered Mr. Bowman to pay Monsanto more than $84,000. The United States Court of Appeals for the Federal Circuit, which specializes in patent cases, upheld that decision, saying that by planting the seeds Mr. Bowman had infringed Monsanto’s patents.

At Tuesday’s argument, Mr. Bowman’s lawyer received a markedly more hostile reception than Mr. Waxman. He was peppered with skeptical questions from almost every justice.

“Why in the world,” Chief Justice John G. Roberts Jr. asked, “would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?”

The lawyer, Mark P. Walters, said that companies could rely on contracts rather than patent law to protect their inventions, an answer that did not seem to satisfy several of the justices.

“It seems to me that that answer is peculiarly insufficient in this kind of a case,” Justice Elena Kagan said, “because all that has to happen is that one seed escapes the web of these contracts, and that seed, because it can self-replicate in the way that it can, essentially makes all the contracts worthless.”

Mr. Walters said that it was Monsanto’s approach that was extreme.

“The reach of Monsanto’s theory,” Mr. Walters said, “is that once that seed is sold, even though title has passed to the farmer, and the farmer assumes all risks associated with farming, that they can still control the ownership of that seed, control how that seed is used.”

Justice Stephen G. Breyer said that there were lots of things Mr. Bowman could do with the seeds he had bought from the grain elevator.

“You can feed it to animals, you can feed it to your family, make tofu turkeys,” he said.

“But I’ll give you two that you can’t do,” he went on. “One, you can’t pick up those seeds that you’ve just bought and throw them in a child’s face. You can’t do that because there’s a law that says you can’t do it. Now, there’s another law that says you cannot make copies of a patented invention.”

Justice Sonia Sotomayor said the doctrine of patent exhaustion did not help Mr. Bowman.

“The exhaustion doctrine permits you to use the good that you buy,” she said. “It never permits you to make another item from that item you bought.”

Mr. Walters, responding to a series of questions in this vein, said that “we disagree that the activity of basic farming could be considered making the invention.”

Mr. Waxman countered that the upshot of Mr. Walters’s argument was that Monsanto’s patents would be rendered worthless.

“Having committed hundreds of millions of dollars in 13 years to develop this technology,” he said, the sale by Monsanto of a single seed “would have exhausted its rights in perpetuity.”

The federal government largely supported Monsanto. “The exhaustion doctrine has always been limited to the particular article that was sold, and we are talking about a different article here,” said a lawyer for the government, Melissa Arbus Sherry. “And it’s never extended to the making of a new article.”

Justice Breyer seemed in a particularly playful mood on Tuesday. At one point he alluded to a notorious line from a 1927 opinion by Justice Oliver Wendell Holmes Jr., in which Holmes sought to justify the forced sterilization of a woman with mental disabilities. (“Three generations of imbeciles are enough,” Justice Holmes wrote.)

“There are three generations of seeds,” Justice Breyer said, to knowing chuckles. “Maybe three generations of seeds is enough.”

by on Feb. 20, 2013 at 10:42 AM
Replies (11-20):
DawnPratt23
by on Feb. 20, 2013 at 1:06 PM
This patent thing is out of control, food should never be patented ever!!
Posted on CafeMom Mobile
LntLckrsCmQut
by on Feb. 20, 2013 at 1:09 PM

Our children are pretty much screwed, and so is this planet.

NWP
by guerrilla girl on Feb. 20, 2013 at 1:23 PM

If Monsanto wins this, then will we see a rush to "patent" other forms of DNA? I wonder if people have considered the implications this might have on our medical system? If anyone out there is as evil as Monsanto, it might be the pharmaceutical industry..

TranquilMind
by Platinum Member on Feb. 20, 2013 at 1:28 PM

This case should make every American angry.  The guy bought SECOND HAND seeds to plant, and some of them happened to be disease-resistant frankenseeds from Monsanto (which none of us should want to consume anyway!)

Businesses are going to tamper with everything and then claim ownership.  By the Supreme Court logic, we can never use yarn to make a blanket...the blanket would be "making a new article".  If the yarn is protected,so would be any product made thereof. 

TranquilMind
by Platinum Member on Feb. 20, 2013 at 1:28 PM

 Oh, you are so right.  The implications are horrifying. 


Quoting NWP:

If Monsanto wins this, then will we see a rush to "patent" other forms of DNA? I wonder if people have considered the implications this might have on our medical system? If anyone out there is as evil as Monsanto, it might be the pharmaceutical industry..


 

talia-mom
by Gold Member on Feb. 20, 2013 at 1:30 PM

Ah.  So patents do apply.   That must mean the bench is paid off instead of them looking at the law and determining you don't have a right to do what he did.

NWP
by guerrilla girl on Feb. 20, 2013 at 1:43 PM

And there goes a whole bunch of people who make a living off Esty.

I wonder what that would mean for me, an artist, when I used recycled discarded items?

Quoting TranquilMind:

This case should make every American angry.  The guy bought SECOND HAND seeds to plant, and some of them happened to be disease-resistant frankenseeds from Monsanto (which none of us should want to consume anyway!)

Businesses are going to tamper with everything and then claim ownership.  By the Supreme Court logic, we can never use yarn to make a blanket...the blanket would be "making a new article".  If the yarn is protected,so would be any product made thereof. 


Neon Washable Paint

NWP
by guerrilla girl on Feb. 20, 2013 at 1:45 PM

I know you are being snarky, but you do know that Monsanto has people directly on the bench of the SCOTUS.

Monsanto has everyone in the gov't paid off....Even Al Gore. So why would this be surprising?

Quoting talia-mom:

Ah.  So patents do apply.   That must mean the bench is paid off instead of them looking at the law and determining you don't have a right to do what he did.


Neon Washable Paint

Lizard_Lina
by Silver Member on Feb. 20, 2013 at 1:46 PM
I agree it is patent infringement.
Having said.
Fuck Monsanto.
Posted on the NEW CafeMom Mobile
NWP
by guerrilla girl on Feb. 20, 2013 at 1:47 PM

If we can patent and own DNA in this manner, what might this mean to stem cell research and, in a non-related issue, the future of our own reproductive science?

Quoting TranquilMind:

 Oh, you are so right.  The implications are horrifying. 


Quoting NWP:

If Monsanto wins this, then will we see a rush to "patent" other forms of DNA? I wonder if people have considered the implications this might have on our medical system? If anyone out there is as evil as Monsanto, it might be the pharmaceutical industry..




Neon Washable Paint

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