U.S. Supreme Court Unanimously Backs Monsanto's Seed Patents

Roundup Ready Credit: MonsantoBack in March, I reported on the U.S. Supreme Court case Bowman v. Monsanto in which an Indiana farmer Vernon Hugh Bowman claimed that he had the right to save and plant herbicide resistant soy bean seeds invented, patented, and produced by Monsanto without paying the company royalties. The Court issued its unanimous ruling against Bowman today:

Bowman planted Monsanto’s patented soybeans solely to make and market replicas of them, thus depriving the company of the reward patent law provides for the sale of each article.

Genetic Engineering News reports:

The U.S. Supreme Court today unanimously sided with Monsanto’s right to enforce its patents for genetically modified soybean seed beyond their initial sale, over objections from a 75-year-old Indiana farmer who used multiple generations of the seed.

The high court concluded that Monsanto’s intellectual property rights to the seed extend to multiple generations beyond an authorized sale. Vernon Hugh Bowman contended that Monsanto exhausted its rights once the first generation seed was sold by its original farmers as a commodity.

“Bowman planted Monsanto's patented soybeans solely to make and market replicas of them, thus depriving the company of the reward patent law provides for the sale of each article. Patent exhaustion provides no haven for that conduct. We accordingly affirm the judgment of the Court of Appeals for the Federal Circuit,” the high court said, agreeing with Monsanto in a 10-page decision written by Justice Elena Kagan.

“If simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention. The undiluted patent monopoly, it might be said, would extend not for 20 years as the Patent Act promises, but for only one transaction. And that would result in less incentive for innovation than Congress wanted," Kagan wrote.

Bowman paid Monsanto for the first generation of the company’s Roundup Ready soybean seed he grew on his Knox County, IN, farm, then bought a bulk mix of soybean seeds at a grain elevator and grew them. He reasoned that the mix included Roundup Ready, named for its resistance to Monsanto’s herbicide glyphosate or RoundUp®, which it did.

Bowman also reasoned that he wouldn’t have to pay Monsanto, which requires its farmer customers to agree in writing to not save seeds from the crop they produce—effectively agreeing to purchase the company’s seed each year.

Interestingly, Kagan noted that the decision does not necessarily apply to future self-replicating technologies.

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  • $park¥||

    If Monsanto insists that a new crop of seeds be bought every year, why do business with Monsanto? I can't believe that it would still be cheaper.

  • Meerkatx||

    Roundup ready seed and crops means most of your crops at this point in time will survive with less if any spraying during the growing season. While it might be a head ache and expensive up front the benefits and long term savings tend to out weight the upfront costs. Also most farmers don't try and use Monsanto seed when they know they shouldn't.

    All that being said, Monsanto is still evil.

  • Ron Bailey||

    $: Benefits outweigh costs.

  • $park¥||

    I get that. I just find it hard to believe that the GMO seeds would be so much cheaper that it makes more sense to buy a new batch every year than it does to buy non-GMO seeds. Maybe I'm wrong.

  • ||

    I'm guessing that the difference I yield is large enough to justify the cost.

  • Sevo||

    Some call me Tim?| 5.13.13 @ 12:44PM |#
    "I'm guessing that the difference I yield is large enough to justify the cost."

    Monsanto sets the cost, and it's a doggon good bet they looked very carefully at the alternatives and set the price as high as they could, but low enough to make it worthwhile.

  • GILMORE||

    it's a doggon good bet they looked very carefully at the alternatives and set the price as high as they could, but low enough to make it worthwhile.

    Market Forces: How Do They Work??

  • Sevo||

    Just about like that.

  • yonemoto||

    no the difference is roundup resistance. It turns out it's actually a huge pain the ass to weed your fields.

  • entropy||

    I don't think there is a great difference in yield. I think the benefit to Monsanto seed here is you can spray the whole field with Round-Up and reliably kill every single thing except the Monsanto super-crop.

    Monsanto apparently now has a patent on the existence of a species. I guess they will hold that for the next few hundred years. Can't imagine what might possibly go wrong.

  • robc||

    I guess they will hold that for the next few hundred years.

    Or, you know, about 20.

    Patents expire.

  • Rasilio||

    Rotfl,

    Gee Mr congressman from Iowa our patent is about to expire and this will cost hundreds of jerbs and unleash the horrors of generic seeds on unsuspecting American Farmers. Here's $500,000 please support the Protecting American Ingenuity bill to extend patent protection indefinitely.

  • robc||

    Unlike with copyright, this hasnt happened with patents.

  • SIV||

    They've been extending drug patents. It is only a matter of time.

  • Acosmist||

    No, seriously, patents expire. Really quickly.

  • Anonymousnonpurist||

    The drug Enbrel got a patent extension so if patents expire too quickly for the liking of the company, they can pull some strings

  • ||

    It's not a species. It's a variety. Sort of like when you go buy tomato seeds you get choices like 'Big Boy' 'Beefeater' 'Early Favorite', etc.
    They're all different varieties of tomato with slightly different size, color, shape, flavor, time to maturity, or whatnot.

    Incidentally, crop breeder have been patenting varieties of plants for a while now. Many species of roses are patented. You can grow them for personal use, but you can't reproduce and sell them without paying royalties.

  • ||

    Er varieties of roses.

    If anyone ever breeds or engineers a blue rose, you can bet it'll be patented.

  • Sevo||

    Pretty sure that flaming lefty Henry Wallace patented several corn varieties.

  • Brett L||

    Next time, the dude ought to "reason" that Roundup won't actually kill his soybeans, regardless of their genetic makeup. Dumbass.

  • Bob Straub||

    I think that it not only increases yield, but also does this by eliminating mechanical weed removal, a significant cost savings. I think farmers just spray their GTS 40-3-2 soybeans with Round-Up. That kills weeds, but not the soybeans. Other varieties of soybeans would apparently not fare so well.

  • LTC(ret) John||

    "Bowman also reasoned that he wouldn’t have to pay Monsanto, which requires its farmer customers to agree in writing to not save seeds from the crop they produce—effectively agreeing to purchase the company’s seed each year."

    So he signed such an agreement, then promptly broke it? Sorry pal, hard for me to shed too many tears for ya.

  • Brett L||

    Technically he didn't save the seeds. Unfortunately, he was also dumb enough to admit that he was explicitly hoping to purchase RoundUp proof seeds from someone besides Monsanto.

  • Emmerson Biggins||

    I think they also get this enforced though on third parties who didn't sign any such statement. Seeds/pollen blow over from somebody elses field, you spray a small patch with Roundup, and the ones that don't die are the ones that got pollinated from your neighbor. And all the sudden you are in violation of a government granted monopoly.

    Someone correct me if I'm wrong about that. I'd too lazy to do actual research.

  • LTC(ret) John||

    I cannot recall the outcome of the case you are citing - I do remember they wanted to go after the neighboring farmer - that is a bridge too far, probably.

  • Emmerson Biggins||

    ya, that is where I draw the line. A contract w/ Monsanto saying they won't re-use the seeds is what "IP" would look like in my version of anarcho-utopia. It's when third parties get involved that I have a problem with things as they exist. Well at least one of the places. (independent invention probably being the other main one).

  • yonemoto||

    As much as I dislike Monsanto, and patents (and would have them abolished), I think this (and Kagan's opinion) are correct. Plant patents are a very specific type of patent, and congress has the broad authority to define exactly what that means.

  • yonemoto||

    I should also add that I dislike Kagan.

  • Night Elf Mohawk||

    I think you pretty much covered it. Not ideal in a vacuum, perhaps, but the only reasonable decision on the facts and law we have.

  • robc||

    Ditto.

  • some guy||

    Agreed. I read the title as "US Supreme Court unanimously declares US patent law is dumb".

  • yonemoto||

    and it is disappointing that Kagan doesn't mention that plant patents are special, because that's what congress deemed it to be.

  • thom||

    It doesn't seem so cut and dry to me because (1) he didn't make a copy so much as take advantage of a property of the product (it reproduces itself) and (2) he apparently wasn't the one who signed the contract with Monsanto agreeing not to use the seeds.

  • yonemoto||

    I'm pretty sure that when congress decided to make plants patentable (in the 1930s) self-replicating plants a special protected class of patent (in the 1970s) this was the point.

    And patent law does not require a contract. If you, say, buy a (patented) stroller second-hand, and then copy the design exactly, and manufacture it (even if you don't sell it), the doctrine of exhaustion does not immunize you from the injunction against having violated the patent.

    In fact, even if you never saw the stroller, and there was no way you could have known about it (say in the days before the internet) you would be prohibited from making an exact copy.

    Such is how IP works, and that's why as a libertarian, I'm not really all that jazzed up about this form of "property".

  • yonemoto||

    "I'm pretty sure that when congress decided to make plants patentable... this was the point."

    I mean "the property of the product", i.e. that seeds self-replicate, is a pretty obvious feature of seeds that you'd have to be seriously dumb to not know. I hope I'm not giving congress too much credit here.

  • some guy||

    Okay, so what if some seeds escaped the farmers lot and took root on my property without my knowledge. When the volunteer crop comes up will I get in trouble? What if I use the crop? What if I sell it?

  • Emmerson Biggins||

    should be able to sue the original buyer for "polluting" your crop with somebody elses IP. Want to use proprietary plants? going to have to screen in your entire farm so no genetic material escapes. Oh, that means it's no longer cost effective? hmmm .... too bad for you, and Monsanto.

  • yonemoto||

    Mens rea WRT to the manufacturing. If a handful of monsanto seeds wind up in your field amidst a crop of normal soy, you probably would not be accountable.

    If you select for it by nuking your fields with roundup, and propagating those seeds, then you're violating the patent, knowingly.

    Also keep in mind that in the stroller case, where you honest-to-god make it independently, you would probably only wind up with an injunction keeping you from producing further units, but able to keep the profits from the ones you sold.

    OTOH, As Harvey Slivergate will attest, mens rea seems to be a dying concept.

  • some guy||

    "Ignorance is no excuse" is the nicer version of "Because fuck you, that's why".

  • Emmerson Biggins||

    If you select for it by nuking your fields with roundup, and propagating those seeds, then you're violating the patent, knowingly.

    true. And a great example of why IP isn't compatible with Real Property. One day it's legal for me to spray roundup on my own crops in an effort to genetically engineer a resistant strain, and then Monsanto files some paperwork, and then it's not. If they don't want to make my do-it-yourself genetic engineering easier, they should keep their filthy DNA off my property.

  • KPres||

    "In fact, even if you never saw the stroller, and there was no way you could have known about it (say in the days before the internet) you would be prohibited from making an exact copy.

    Such is how IP works, and that's why as a libertarian, I'm not really all that jazzed up about this form of "property".

    Another example...

    A hacker, who's never seen your online banking password, nevertheless runs an algorithm trying every combination of characters until he finds yours, effectively making an exact copy, and uses it to break into your account, alter some more IP (subtracting from the numbers in your balance and adding to the numbers in his balance), and leaves you broke.

    He never took any physical property from you, but most people think of that as stealing.

  • Emmerson Biggins||

    total bullshit example that has nothing to do with the original point. Not even a valid strawman, as once the hacker gets your money, you can't use it any more.

  • Robert||

    No, I think his analogy is a good one, and indeed money can be reused indefinitely.

  • Emmerson Biggins||

    not by the person who no longer has it.

  • ||

    I expected this, but I'm still going to celebrate this ruling with a drink tonight.

    I'll be happier when the FDA finally approves GMO salmon.

  • Sevo||

    The comentariat at the SF Chron is (predictably) up in arms; sample:
    "monsanto changes a few genes out of the many thousands in a corn plant ... and now THEY own the whole thing ... ???"
    http://blog.sfgate.com/techchr.....-monsanto/
    Brain-dead twit would probably break out in assholes and shit himself to death if he knew that's where Henry Wallace's fortune came from.

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