FedSoc Blog

High Court Sides with Monstanto in Seed Case


by Publius
Posted May 13, 2013, 2:10 PM

Wired's Threat Level blog reports:

The Supreme Court on Monday for the first time backed patents for a self-replicating technology — Monsanto’s “Roundup Ready” soybeans — along with its licensing agreement that allows farmers to use them only once.

Regardless of how unnatural the conditions may seem, the licensing agreement with farmers also forbids the seeds to be resold for commercial planting, and they cannot be used for research, crop breeding or seed production.

Welcome to farming in the age of patented, genetically modified organisms, which in this case concerned soybean crops that withstand herbicide.

In the end, a unanimous Supreme Court found that intellectual property rights took precedent over nature. The high court ruled against an Indiana soybean farmer whom a lower court had ordered to pay $84,456 in damages and costs to Monsanto in 2009 for infringing its soy bean patents.

“If simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention,” Justice Elena Kagan wrote for the majority. “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.” (.pdf)

Knox County farmer Vernon Bowman’s dirty deed? The 74-year-old bought soybean seed from a local grain elevator that was contaminated with the patented seed, which he used to produce beans on his 299 acres.

The case addresses the question of how far down the stream of commerce — in this instance the farming cycle — can a company control its patents, especially for products like soybeans that easily self-replicate. A lower court, an appeals court and even the President Barack Obama administration had maintained the stream is virtually endless.

The Supreme Court agreed.

“Were the matter otherwise, Monsanto’s patent would provide scant benefit,” Kagan wrote, adding: “Our holding today is limited—addressing the situation before us, rather than every one involving a self-replicating product.”

The Obama administration had told the Supreme Court in a filing that the justices should not concern themselves with the possibility that such rigid patent protectionism could undermine traditional farming techniques, where parts of one harvest are often used to produce the next. The administration said Congress “is better equipped than this court” (.pdf) to consider those concerns.

Monsanto had told the court that, if the justices sided with the farmer, such a decision would doom its business model.

“Without reasonable license restrictions prohibiting the replanting of second- and later-generation soybeans, Monsanto’s ability to protect its patented technology would effectively be lost as soon as the first generation of the product was introduced into the market,” the agriculture giant told the high court in a filing.

In April 2013, FedSoc's Environmental Law & Property Rights Practice Group and Intellectual Property Practice Group poduced a podcast on the case. The podcast featured:

  • Prof. Adam Mossoff, Professor of Law, George Mason University School of Law
  • Mr. Douglas T. Nelson, Executive Vice President, General Counsel and Secretary, CropLife America
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Click here to listen to the recording.

SCOTUS Refuses to Hear NYC Rent Control Case


by Justin Shubow
Posted April 23, 2012, 11:34 AM

This morning the Supreme Court rejected a case regarding rent control in New York City.  According to the New York Observer:

Today will be a day of rejoicing—time to break out the Andre—for residents with rent control.

The Supreme Court has declined to hear the challenge to rent control brought by former federal prosecutor James D. Harmon Jr., the owner of a five-story townhouse on West 76th Street.

Mr. Harmon, who grew up in the brownstone and now lives there with his wife Jeanne, inherited the building and its three rent-controlled tenants from his grandfather. Mr. Harmon’s three rent-controlled tenants each pay around $1,000 a month for one-bedroom apartments, about 59 percent below market rate, according to court documents. Three other tenants in the building pay market rents.

Mr. Harmon argued that New York City’s rent laws violate the Constitution by taking his property without just compensation.

This is not the first time Mr. Harmon has challenged rent control laws in the courts, nor is it the first time that his case has been denied. The Supreme Court does not release any statements when it declines to hear a case.

Previous denials of Mr. Harmon’s Earlier suits filed by Mr. Harmon sought to remove a rent-controlled tenant so that the Harmons’ college-age granddaughter could live in the unit. Most recently, he took the case to the the United States Court of Appeals for the Second Circuit, which ruled last September that the rent-stabilization law did not constitute a “taking” and that Mr. Harmon had acquired the property with “full knowledge that it was subject to RSL.”

In February 2012, Professor Richard Epstein discussed the case in a Environmental Law & Property Rights Practice Group Podcast.  You can listen to it here.

Podcast on the Keystone Pipeline


by Publius
Posted April 04, 2012, 10:13 AM

Listen to the audio here.

The Keystone Pipeline is designed to transport petroleum products from Northeast Alberta, Canada, to as far away as the Gulf Coast of Texas. Proponents argue that the pipeline is essential to lower the cost of petroleum products and increase America’s energy independence. Opponents assert that the process used to “mine” the sand oils in Canada is not environmentally friendly, and that the pipeline itself presents environmental hazards that have not been completely taken into account. As Canada’s oil production and exports increased, President Obama postponed a decision that would have permitted construction of the pipeline extension. In this Environmental Law & Property Rights Practice Group podcast, our experts discuss the merits of the pipeline from differing perspectives.


  • Mr. Daniel Simmons, Institute for Energy Research
  • Prof. Mark Squillace, University of Colorado Law School
  • Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society




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