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.