Should corporations be allowed to patent genes?
May 15, 2013
By Jeremy Quattlebaum, Student Voices staff writer
In mid-May, the Supreme Court ruled on a case that pitted a 75-year-old Indiana farmer against the agriculture giant Monsanto. The case centered on whether the farmer, Vernon Hugh Bowman, had violated Monsanto’s patent on a genetically modified soybean.
While the ruling may seem to affect only farmers, its interpretation could affect prices of products ranging from computer software to farm goods.
Monsanto owns the patent for a popular soybean that has been genetically modified to be resistant to the weed killer Roundup, an herbicide that is also patented by company. The seeds, called Roundup Ready, are three times as expensive but are extremely resilient to weed killer, allowing farmers to spray for weeds without affecting the plants. Farmers have tried to regrow seeds from the first generation, which Monsanto said violated its patent.
Farmers must sign a license agreement with Monsanto promising to use Roundup Ready seed for their first-growth plantings and also promising not to save some of the seeds to grow their next year’s crop.
Bowman had signed such an agreement, and had several high-yield fields planted with licensed Roundup Ready seeds. He also had lower-yield fields, so he wanted cheaper seeds to plant in those. He went to the local grain elevator and bought harvested soybeans, which are usually used for livestock feed.
Because Roundup Ready seeds are so popular, accounting for up to 90 percent of the nation’s soybean crop, Bowman knew that many of the seeds he was buying to replant were going to be the genetically modified soybean seeds. He eventually produced eight separate harvests from the seeds he bought and using second- and third-generation seeds.
Monsanto found out and sued Bowman, arguing that the farmer had violated the contract and the company’s patent. Bowman fought the lawsuit but lost in the lower courts, where he was ordered to pay nearly $85,000 in damages. The Supreme Court then accepted the case.
The case revolved around two different, and often conflicting, legal doctrines. One doctrine says that once you buy a product, it is yours to do with what you please. If it is a car, you can paint it, sell it, or drive it into a ditch and bury it. This is called patent exhaustion.
The only thing you can’t do is copy the car. This would violate the patent that the manufacturer has on the car; therefore, you are infringing on the patent. This is the second doctrine the court considered.
In Bowman v. Monsanto, this question was asked: Is generating seed from a patented plant the same as copying the plant? The plant is not an exact genetic copy of the plant, but it does contain up to half of the patented genetic material that is owned by Monsanto.
Bowman argued that soybeans naturally replicate, and therefore nature, not Bowman, was responsible for the copying of patented genetic material.
The court ruled unanimously in favor of Monsanto. Justice Elena Kagan wrote the opinion, saying that Bowman is perfectly free to purchase seeds from a seed elevator and use them to plant fields.
What he can’t do is test them for Roundup resistance, and then harvest and replant seeds from those plants without paying Monsanto a fee, which Bowman did.
“Bowman devised and executed a novel way to harvest crops from Roundup Ready seeds without paying the usual premium,” Kagan wrote for the court, rejecting what she called Bowman’s “blame-the-bean defense.”
“Bowman was not a passive observer of his soybeans’ multiplication; or put another way, the seeds he purchased (miraculous though they might be in other respects) did not spontaneously create eight successive soybean crops,” Kagan wrote.
Kagan also expressed concern for invention and innovation, which are at the heart of patent law. “If someone is able to copy a patented product simply by planting it and collecting its progeny, “a patent would plummet in value after the first sale of the first item containing the invention,” Kagan wrote. Then, innovators would have less motivation to invest in and take a risk on new inventions.
The implications for the case are far-reaching, going beyond the fields and into your homes and pockets. But Kagan’s opinion limited the scope of the ruling on future self-replicating products like genetically engineered organisms and software that could be cheaply and easily replicated.
“We recognize that such inventions are becoming ever more prevalent, complex, and diverse,” Kagan wrote. “In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose.”
The opinion concluded: “We need not address here whether or how the doctrine of patent exhaustion would apply in such circumstances.”
What do you think?
Do you agree with the court’s ruling that the farmer violated Monsanto’s patent? Is his argument that nature did the replication a sound argument? Is protecting patents, and encouraging innovation, important? Join the discussion and let us know what you think!
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