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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 (41-48):
OHgirlinCA
by Platinum Member on Feb. 25, 2013 at 4:31 PM

 I can see the patent infringement angle of this, even though I think Monsanto is being incredibly petty.  Sadly, it doesn't surprise me considering what a shady company they are ethically speaking (on many levels).

OHgirlinCA
by Platinum Member on Feb. 25, 2013 at 4:47 PM

 This is just one of the reasons why I can't stand Monsanto.  They sue farmers when these farmers never wanted their product in the first place.  The farmers should be suing them for contaminating their crops.  Quoting krysstizzle:

Well, paid off. Or too fucking stupid to understand the devastating implications of this type of interpretation of patent law as it applies to living organisms. Or maybe they've just been harassed by Monsanto a la Percy Schmeiser, the farmer that got sued (plus stalked and received threatening phone calls) by Monsanto when their crap gmo pollen drifted to his canola fields.

One of those, anyway.


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.

 

krysstizzle
by on Feb. 25, 2013 at 5:17 PM

Fear? That's not quite the right word, is it? I don't fear genetically modified seeds; I think know they're detrimental to the health of the environment and crop biodiversity. There may be some anger and frustration, not fear. 

Living organisms and genetic sequences should not be allowed to be patented, period. That's horrible on so many levels. Companies want to make them? Fine, have at it. But don't patent DNA. And labeling and patenting are two different things. Obviously. If you aren't sure your seeds aren't GMO, then you should have to label them. Simple as pie. 

Quoting coronado25:

Considering the passion there is against patenting a modified gene, would you rather it go unpatented and unprotected?  Shouldn't people who fear GMOs be happy that GM0 developers keep exquisitely tight rein on their products and enforce the control of such genes?  

I don't fear any gene, so for me, it can all go hither thither where ever it likes once it is out of the lab. But for those that fear altered genes, (so weird a fear), then how is it you are not slandering this farmer who signed a contract saying expressedly that he could not, should not, must not, try to replicate the crop the following year.  How is it that no one is mad as hell that this farmer made a profit on a GMO and now is hoping to take next generation of crop that survived his Round up Ready spraying and thus has the patented gene to sell for profit again, but this time, without calling it Monsantos, and trying to pass it off as his own?


krysstizzle
by on Feb. 25, 2013 at 5:18 PM

The SCOTUS' decision will set a precedent for how patent laws regarding DNA will be interpreted in the future. They have a chance to make an interpretation and decision that limits patent protection of genes. But I seriously doubt they're going to take it, unfortunately. 

Quoting OHgirlinCA:

 I can see the patent infringement angle of this, even though I think Monsanto is being incredibly petty.  Sadly, it doesn't surprise me considering what a shady company they are ethically speaking (on many levels).


krysstizzle
by on Feb. 25, 2013 at 5:22 PM

I support the principle of the matter. And imo, genes shouldn't be allowed to be patented, anyway.

I also think that if there's a possibility crops are GMO (as in this case), they should be labeled as such so that I, as a consumer, can choose whether or not to buy them. 

Supporting a case does not mean unconditionally supporting the individual. It's a little thing called nuance.

Quoting coronado25:

Wait, most of you who cannot stand the idea of genetically modified and engineered organisms go crazy at the idea of them being out and about in your food supply. And yet you support this farmer who wants to continue growing this product as his own, and saved this seed, and wanted to sell it, and not as GM, necessarily.  

Would you not want to protect the patent and "know what you're eating"? Or would you rather that farmers like him try to pass off this as his own crop?  

   Also, this farmer is an idiot, because each respective crop will have less and less of the gene expression he so wished to continue.  Remember your Punnet's squares?  His crop that he is in court for is an F2 of clones.  Be it plants or animals, your probability of getting the desired traits is slimmer and slimmer each generation.  Let him keep trying to reproduce it. In a couple years he will have nothing of value to sell.

He should never be allowed to farm again for his crime of stealing and it is all the worse that he is  gaining your undue sympathy for attempting to grow this crop and pass it off as his own to people who want the right to choose not to buy anything coming from Monsanto or GM foods in general.



OHgirlinCA
by Platinum Member on Feb. 25, 2013 at 5:26 PM

 Please don't misunderstand me.  I am with you on this.  I don't want Monsanto to win simply because of the future implications on the amount of control Monsanto will have over our food sources.  I just see how "technically" they could win their case. The SCOTUS is bought and paid for like every politician is.  It's another very worrisome cause for concern for this country.

Quoting krysstizzle:

The SCOTUS' decision will set a precedent for how patent laws regarding DNA will be interpreted in the future. They have a chance to make an interpretation and decision that limits patent protection of genes. But I seriously doubt they're going to take it, unfortunately. 

Quoting OHgirlinCA:

 I can see the patent infringement angle of this, even though I think Monsanto is being incredibly petty.  Sadly, it doesn't surprise me considering what a shady company they are ethically speaking (on many levels).


 

krysstizzle
by on Feb. 25, 2013 at 5:28 PM

Agreed (and I understood you, however sharp my reply seem ;) )

I think they chose this case to hear for a specific reason (technicality), and you're right. So unfortunate. 

Quoting OHgirlinCA:

 Please don't misunderstand me.  I am with you on this.  I don't want Monsanto to win simply because of the future implications on the amount of control Monsanto will have over our food sources.  I just see how "technically" they could win their case. The SCOTUS is bought and paid for like every politician is.  It's another very worrisome cause for concern for this country.

Quoting krysstizzle:

The SCOTUS' decision will set a precedent for how patent laws regarding DNA will be interpreted in the future. They have a chance to make an interpretation and decision that limits patent protection of genes. But I seriously doubt they're going to take it, unfortunately. 

Quoting OHgirlinCA:

 I can see the patent infringement angle of this, even though I think Monsanto is being incredibly petty.  Sadly, it doesn't surprise me considering what a shady company they are ethically speaking (on many levels).


 


NWP
by guerrilla girl on Feb. 25, 2013 at 5:33 PM

Yes...Of all the cases they could have chosen to hear on the Monsanto front, they pick this one. Seems like a good way to legally strengthen the strangle hold Monsanto has on farmers.

Quoting krysstizzle:

Agreed (and I understood you, however sharp my reply seem ;) )

I think they chose this case to hear for a specific reason (technicality), and you're right. So unfortunate. 

Quoting OHgirlinCA:

 Please don't misunderstand me.  I am with you on this.  I don't want Monsanto to win simply because of the future implications on the amount of control Monsanto will have over our food sources.  I just see how "technically" they could win their case. The SCOTUS is bought and paid for like every politician is.  It's another very worrisome cause for concern for this country.

Quoting krysstizzle:

The SCOTUS' decision will set a precedent for how patent laws regarding DNA will be interpreted in the future. They have a chance to make an interpretation and decision that limits patent protection of genes. But I seriously doubt they're going to take it, unfortunately. 

Quoting OHgirlinCA:

 I can see the patent infringement angle of this, even though I think Monsanto is being incredibly petty.  Sadly, it doesn't surprise me considering what a shady company they are ethically speaking (on many levels).


 



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