US Supreme Court Backs Monsanto in Seed Patent Case

16 May 2013

Farmers may not use a patented seed for more than one planting, ruled the US Supreme Court on Monday in a battle between agro-giant Monsanto and a farmer who used the company’s patent-protected genetically modified soybeans without compensating it. The US Court of Appeals for the Federal Circuit has ordered Indiana farmer Vernon Hugh Bowman to pay Monsanto close to US$84,000 in damages.

The farmer regularly purchased the Monsanto bean for his first planting, but wanted a lower-cost option for his riskier second planting. He purchased commodity soybeans - which are commonly used for feed - from a local grain elevator instead of the more expensive seeds from a Monsanto-authorised dealer. Knowing that they were probably Monsanto’s herbicide-resistant Roundup Ready beans - estimates say about 90 percent of soybeans in the US are - Bowman proceeded to plant, harvest, and replant those beans.

The farmer argues that he was not violating the company’s patent because he had already purchased the progeny seeds and therefore Monsanto no longer held a claim over the product.  His defence invoked the commonly-called “first-sale” or “patent exhaustion” doctrine, which states that once a product has been sold companies no longer have control over their products.

“The only way to use the invention…is to plant it and to grow more seeds,” said Bowman’s attorney Mark Walters in oral arguments in February. However, this argument did not win over the Supreme Court justices, who ruled unanimously that this constituted an infringement of Monsanto’s patent rights because Bowman made additional beans that contained the company’s technology.

“The exhaustion doctrine does not enable Bowman to make additional patented soybeans without Monsanto’s permission,” said Justice Elena Kagan, who delivered the court decision.

“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,” Kagan wrote. “Patent exhaustion provides no haven for that conduct.”

Yet Kagan acknowledged the case was particularly tricky because the seeds were self-replicating, which could mean that they could replicate outside of the purchaser’s control. However, the court noted that theruling applies to just this particular case, and that it did not address whether or how the patent exhaustion doctrine would apply in other cases.

Still, some critics say the decision could have far reaching implications.

“The court concluded without detailed examination of the markets and technology that the planting of a seed constitutes unauthorised making of the patented germplasm,” said Shubha Ghosh, a professor at the University of Wisconsin Law School. “In so doing, the Court has expanded the scope of liability for patent infringement by users of genetically modified seeds and plants on the sole justification that the patent owner will not be able to be adequately compensated.”

Bowman’s attorney further argues that the ruling is not in line with current farming practices. Speaking to Reuters, Walters said that the ruling “makes infringers out of 95 percent of America’s soybean farmers.”

Monsanto, however, expressed satisfaction with the decision, noting that it will enable the company to better meet the needs of a changing planet.

“The Court’s ruling today ensures that longstanding principles of patent law apply to breakthrough 21st century technologies that are central to meeting the growing demands of our planet and its people,” the agribusiness giant said in a statement.

ICTSD reporting; “US Supreme Court rules for Monsanto in patent fight,” REUTERS, 13 May 2013; “Supreme Court rules for Monsanto, says farmer violated genetically modified soybeans’ patent” WASHINGTON POST, 13 May 2013.

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