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Published on April 12th, 2012 | by Jeremy Bloom

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Should Monsanto be able to patent genes? Supreme Court may take up the case, in part.

supreme court Some rights reserved by EnviosShould a corporation be able to patent life and then legally restrict farmers from methods that have been used for 10,000 years?

Monsanto has made its patented genes the centerpiece of its business model, but there are plenty of people who think the very idea is appalling. Now, the Supreme Court may take up the question.

The case (Monsanto v Bowman) involves an Indiana farmer, Vernon Bowman, who bought bulk soybeans and planted them as seeds – something farmers had been doing for generations, until Monsanto came along.

In order to maximize corporate profits, Monsanto’s contracts don’t allow farmers to save some of their crop and replant the seeds: If you want to take advantage of Monsanto’s designer genes, you have to buy them fresh each and every season.

Monsanto sued Bowman for patent infrigement (something that the company also insisted it DOESN’T do, as recently as this past February, when farmers attempted to get a preemptive court injunction against just this kind of suit).

Here’s where the fun starts.

Patents for normal stuff come with what is called “exhaustion.” That is, if you buy a car or a refrigerator with patented components, the rights of the patent holder are exhausted in that first sale. You can safely resell your car without running afoul of patent law. You can resell your used books, video tapes, washing machines – anything up to nuclear reactors – and not run afoul of patent law.

But what about seeds? Not that the founding fathers would have considered seeds as patentable – the very idea would have been laughable. But stick with us.

Once you get to seeds, you have a problem. Seeds are self-replicating. If you buy one seed, you will soon have 10 or 100 or 10,000 seeds that you could sell. Just as you aren’t allowed to make photocopies of a book and go out and sell them, Monsanto argued that the “exhaustion doctrine” shouldn’t apply to seeds. And the courts agreed.

It’s a reasonable-seeming argument… but there are several problems. As  notes at Arstechnica,

In a world where 94 percent of soybeans in circulation are descended from Monsanto’s genetically engineered seeds, it might be hard for farmers who didn’t want Monsanto’s seeds even to buy seeds that were not patent encumbered. Monsanto’s position would effectively place the burden on farmers to test seeds they hope to plant in order to ensure they are not covered by any patents.

It’s not like you’re buying an obviously-pirated copy of “Hunger Games” off a bootlegger on a streetcorner. Monsanto hasn’t bred their little frankenbeans to grow little “©”s on the pods: you can’t just look at a pair of soybeans and say “Okay, this one is clean, but that one is Monsanto.”

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So here’s what Bowman (or at least his lawyer) asked the Court:

Patent exhaustion delimits rights of patent holders by eliminating the right to control or prohibit use of the invention after an authorized sale. In this case, the Federal Circuit refused to find exhaustion where a farmer used seeds purchased in an authorized sale for their natural and foreseeable purpose – namely, for planting. The question presented is:

Whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?

Monsanto, in its filing, restated the question thusly:

Whether the Federal Circuit correctly ruled that Monsanto’s patent rights in biotechnology related to genetically modified plants (here, patented technologies that make soybeans resistant to glyphosate-based herbicides) are independently applicable to each generation of soybeans embodying the invention, such that a grower who, without authorization from Monsanto, creates a new generation of genetically modified soybeans infringes Monsanto’s patents.

The Supreme Court has not addressed this issue directly, although it danced around it when it upheld the exhaustion principle in the Quanta case.

But as a preliminary step in deciding whether to consider Bowman’s appeal, they have asked the Obama administration to put together a brief for them on the issue. The good news: the Solicitor General of the US might advise the court that Monsanto is going too far, and should allow farmers to do what farmers have always done with their seeds. Here’s what the then Solicitor General wrote in his brief to the SCOTUS in Quanta:

[T]here is a seeming anomaly in allowing a patentee to achieve indirectly –- through an enforceable condition on the licensee – a limitation on use or resale that [because of the exhaustion doctrine] the patentee could not itself impose on a direct purchaser.

The bad news: The Obama administration is crawling with former Monsanto employees and allies, from Agriculture Secretary Tom Vilsack on down.

But there’s more good news: So far, Monsanto’s tentacles don’t stretch into the Justice Department… In fact, Dennis Crouch at the PATENTLYO blog notes an earlier Justice Department filing (in McFarling v. Monsanto, 2005) was not so friendly to Monsanto:

The McFarling petition did not focus on exhaustion. However, in a footnote the SG brief noted that “whether (and, if so, to what extent) the patent-exhaustion doctrine applies to restrictions on the use of a materially identical patented product that was produced by the patented product sold by the patentee” is “novel.”

But there’s also even more bad news: Even if the Solicitor General recommends they take up the case, this court has been particularly friendly toward corporations, none more so than Justice Clarence Thomas… himself a former Monsanto employee.

And then there’s the bigger question: There are those that feel, strongly, that genes should never have been patentable in the first place. Because that’s what opened up this whole can of worms and sent the snakes nest tumbling down the slippery slope.

No matter how many different ways you argue it, Monsanto didn’t create the genes in question – they found them. They did create the technique for inserting them into different organisms, and that technique is patented.

But the idea of patenting the portions of living organisms themselves? That has absolutely nothing to do with the original intent of patent law. Funny how it’s the justices that so often spout fealty to “original intent” who seem the most intent on supporting big ag firms like Monsanto by giving them patented power over life.

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(Image AttributionNoncommercialNo Derivative Works Some rights reserved by Envios)




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About the Author

Jeremy Bloom is the Editor of RedGreenAndBlue.



  • prairie adams

    It is so ridiculous to keep reshuffling words trying to find some combination of them that justifies patenting LIFE! Capitol gain is the only incentive strong enough to make people stoop to this kind of mind numbing “logic”.

  • Jennifer Vandecar

    BURN THIS COMPANY TO THE GROUND!!! SAVE OUR PLANET!!! You can not patent seeds!! and u can not miss your nasty seeds with real seeds!! Your seeds are fake, unhealthy, deadly, u do not even know what u are doing.. your greed for money or power is blinding u.. Whats next your going to patent humans and make your own slaves.? Your seeds and kill a corn bug if it eats the corn — well what the heck do u think it is going to do to human? is that your whole point? to make humans die to make $- u disgust me! I will never buy from this company! I dont even want to live in America anymore because of companies like this!!!

  • Jennifer Vandecar

    Cant we create healthy companies in this country? Companies that the people can be proud of? So many people are not proud to be an American anymore! What happened?
    *mix your nasty
    *your seeds can kill a ..

  • Pingback: A Controversy Exists: Family Farmers Continue to Take on Monsanto on Ecocentric Blog | Food, Water and Energy Issues

  • misterbean

    From Indymedia portal
    https://london.indymedia.org/articles/12264
    http://piemonte.indymedia.org/article/15034

    The secrets of Monsanto
    Miguel is very familiar with Monsanto. He worked for the multinational in Latin America for over 25 years. He knows life, death and miracles. The secrets of Monsanto.
    Today Miguel is one of the GMO repented. He wants to do something constructive. Caught by the crisis of conscience has decided to tell who is Monsanto and its plans for Europe (and Italy).
    Monsanto with its brands and the leader leading seed company in the world. Currently working in over 60 countries with over 14,000 employees, has revenues of nearly $ 6 billion investment in research and genomics and biotechnology for over half a billion dollars. After the repenting of TAV (hight rail speed) we ask to the new repented of GMOs: “Miguel…” (unreal name of course), “but why we should be worry about Monsanto? In most European countries the seeds and genetically modified foods are prohibited”. Miguel scratches his head and he replies: “It is true, however, Monsanto now has fielded a powerful lobby in Europe and has also – indeed, and thoroughly convinced – to be able to change things. As has already been done successfully in other areas of the world”. After running away like hell of Monsanto from Europe (because of hostility to GMO crops) has realized that now is the time is right to insist, and to return. Even in a big style I think. Jokingly we can say “go home Lasso” (Lasso is the name of a diabolical chemical produced by Monsanto). In the Mediterranean basin the corporation wants to do what Monsanto is doing in Latin America. In fact in South America the largest holdings, droves of agronomists and large consortia of manufacturers are intensively exploit the territories using only bio-technologies of the American colossus. The absolute monopoly. Once the crops with GMO products were made more or less clandestinely now practice them easily in sunlight. Among the many, is very active the AAPRESID, Argentina Association of Manufacturers in Direct Seeding founded in 1989. It is one of the most important NGO composed of a dense network of innovative producers from all over the Argentine territory , which receives support from science and experience Monsanto and experiments on the field all its new technologiesRight there in the pampas, after decades of brutal exploitation, now is studying the problem of environmental deterioration. The intensive work of coltivation have destroyed the biological and ecological integrity of the soil system. The wind and water erosion (as well as the unscrupulous use of poisons Monsanto) daily continues to cause pollution of water courses, and are phenomena which become increasingly pronounced and constitute a major cause of land degradation. If you read the “Dossier Monsanto Dekalb – Hybrids with high efficiency” (that Miguel, has put kindly available to us) talk specially about this, the technique of intensive exploitation of land, to promote specifically “the increase of the annual production per unit area” and “increases in multi-year average yieldThe Argentina of course is just a gym, then its model will be gradually exported overseas. In Italy there are already labs ready to be put to good use these experiments. A Pontevico in Italy there is for example an important research center Monsanto (and an even in Olmeneta) whose task is to monitor and investigate the analytical work that is done by all other Monsanto laboratories around the world (Umberlandia in Brasile, Ankeny and St Louis in USA, Boissay Francia, Bethlehem Sud Africa).
    But a question comes naturally: “Miguel but you are quite sure that in Europe there are now favorable conditions for the comeback of Monsanto?”. The gaucho shakes his head and says yes without hesitation. Monsanto, tells us, some time has unleashed its 007, its secret agents in order to probe into the European market (with particular attention to the Italian market) and to approach all major corn growers professionals, offering interesting counterparts in exchange for use of its products modified in the laboratori (to start their would like sponsor a highly hybrid corn varieties adapted to the Mediterranean zone). In Europe and in Italy, for example, perhaps not everyone knows it, even if GMOs are officially banned and initiated a moratorium, some of these GMO are also used, studied, tested and widely used (The important thing is not to tell anyone where and how). the technologies and brand Monsanto products are already well known and present reality, for years in many important industries (see products as DEKALB, Asgrow, Roundup e Cargill).
    Let’s say, for the sake of truth, that in Theoretically the biotechnology applied to agriculture, may be harbingers of great benefits for humanity, especially for crop protection against viruses and parasites and the defeat of world hunger. In reality, however – or so says our well-informed interlocutor – is exactly the opposite. The substances manipulated by the eco-monster american caused only enormous environmental damage. Just think of a variety of corn, that a brilliant Monsanto scientist has mixed with a deadly pesticide (corn type MON810 treated with the Poncho 2 a potent pesticide manufactured by german Bayer). Insecticides, fungicides, pesticides, herbicides and fertilizers produced by Monsanto, instead of defending the environment they’re literally killing and poisoning. It ‘s the case of a hyper technological disinfesting based Zetacipermetrina, a pyrethrum generation with neurotoxic activity that causes immediate paralysis and death of larvae and insects (pity that also kills bees and insects that are essential to the balance of the ecosystem). According to Miguel this substance of synthesis is also responsible of many problems of all crops (soybean, corn, canola, cotton, potatoes) with consequences not so beautiful in the food chain. When nature rebels then are just greats pain for all.
    That the Saint Louis multinational did some of disgusting things, actually someone had already suspected. Monsanto has repeatedly been accused of serious negligence, fraud and threats to health and integrity of persons and property, health and ecological disasters as well as use of false evidence.
    A rather striking case was that of the herbicide Monsanto Roundup (the world’s best selling and most widely used in school gardens and green areas in cities) which unfortunately has had some slight drawback (cause only a bit of malformations and of genetic mutations). Proven studies by international research (including Argentine and British scholars) have established incontrovertibly the responsibility of the herbicide in craniofacial malformations of the embryos of chickens, frogs and other animals. Other scientists have foundinstead that Monsanto’s Roundop destroys testosterone and causes male infertility in humans and in animals. Another independent team instead have found that the Roundop also causes birth defects, cancer, genetic damage, alterations in endocrine and other damages even if the Monsanto product is absorbed at very low doses. Let alone the massive use of this product, as normally happens in agriculture. There’s hardly surprising that there was a worrying emergence of cancerous diseases observed right on the population of South America, one of locations of the world where you use more Roundup GMO soybeans, genetically modified soybeans created by Frankenstein by genetics biotech Monsanto for tolerate high levels of Glyphosate (the killer substance which is contained in the Monsanto’s products). But the killers products are many others, such as the deadly pesticide herbicide Lasso for which Monsanto has recently been condemned for poisoning and intoxication (want to see that in the end did less damage the Eternit asbestos and the chemical of ENI?).
    An interesting document internal Monsanto Italy – that thanks to Miguel we were able to view – expressed: “First herbicide with European recording (20-11-2001). All manufacturers must demonstrate the safety of their products. We provide the best data on physico-chemical-toxicological. Most of the recordings will be: canceled or classified (within 2 years). Roundup will surpass all tests (strong European lobby of support for Monsanto)…” (See attached pdf and document here reproduced).
    A team of honest researchers recently have published a dossier that accusing the american agro-chemical industry, and the European Commission to have knowledge at least from thirty years of the dangerousness of this product Monsanto but had deliberately kept secret to the public opinion. Monsanto is replicating the sad joke of the tobacco companies? Repeats itself the history of the Eternit asbestos? Everyone knew it was deadly, and today we count the dead and wounded. That at least this time Monsanto you put one hand on your heart and has the good sense to write it in big letters on its products: “Monsanto is seriously detrimental to health”.
    An interesting research study sponsored by Monsanto says: “Men and Biotechnology, real risks or imaginary risks?” (See attached pdf and document here reproduced). Say pro-GMO and pro-Monsanto: “…genetic engineering can lead to dangerous products. True. Multinationals do not work to solve environmental problems or world hunger but only pursuing their profits. True. The law allows the patenting of genes or organisms is very contradictory. Its foundations are based on arbitrary assumptions which identify a right ethically very questionable. True … “. As says the Monsanto’s motto: “ … companies that look to the future do more that satisfy their customers. must astonish their customers”. This time it has really surprised Frankenstein.
    “Miguel…” (meanwhile, thanks for all the information) we ask “…these things of Monsanto are much interesting, you can tell us other interesting things?”
    “Sure you … if you do not mind …”.
    .-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.
    If you fancy – and time – you can throw an eye on some interesting documents Monsanto (courtesy of Miguel).

  • RailroadMike

    The fact that Thomas is hearing this case is proof this country is nothing more than a Oligarcky. “To consider the judges as the ulitmate arbiters of all constitional questions (IS) a very dangerous doctrine indeed, and one which would place us under the despotism of an Oligarcky”. Thomas Jefferson 1816.

  • Seculla

    It would be a good thing if the Court ruled that GMO seeds can’t be replanted. Maybe that small negative economical push would turn farmers back to proper, healthy, natural seeds.

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