Next week the United States Supreme Court will hear oral arguments on the case of Bowman v. Monsanto. The argument is that when a farmer plants a genetically altered seed, grows a crop, harvests the crop, and collects the seeds from the harvested crop, he should have a right to plant those harvested seeds without paying the patent-holder a licensing fee to use their “product”.
Over the course of the last decade and a half, Monsanto, a bio tech company, has sued over 145 farmers for patent infringement. One Supreme Court Monsanto case, a 7-1 decision, merely established that Monsanto has a concrete stake in the outcome of any litigation regarding re-cultivation of genetically-altered seed.
Instead of committing suicide like many other farmers facing litigation from Monsanto, Bowman appealed the Indiana District court’s decision to the Court of Appeals on the grounds that “sales of second-generation seeds by growers to grain elevators, and then from grain elevators to purchasers (like Bowman) are authorized according to the terms of Monsanto’s Technology Agreement, and are thus exhausting sales . . . under the Supreme Court’s analysis in Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008).”
“Bowman further argued that if the right to use patented seeds does not include the unlimited right to grow subsequent generations free of liability for patent infringement, then any exhaustion determination “is useless.” Bowman urged the court to hold, under Quanta, that each seed sold is a “substantial embodiment” of all later generations, thus adopting a “robust” exhaustion doctrine that encompasses the progeny of seeds and other self-replicating biotechnologies. According to Bowman, “[t]he Supreme Court disapproved undermining the exhaustion doctrine by categorically eliminating its application [to] method patents [and t]his [c]ourt should not condone effectively eliminating the doctrine for self-replicating products.” – (From Brief of Bowman).
Essentially, a seed self-replicates in nature. It is supposed to do that — Monsanto didn’t invent that. So, when there is a sale, plant, harvest, and then use, the rights to limit the production of Monsanto’s patented design are “exhausted.” Future replication should be permitted under the analysis of the Exhaustion Doctrine in Quanta, and if the Court doesn’t rule in Bowman’s favor, the previous decision is meaningless. Low and behold, the court finds against the Middle-American farmer.
So, Bowman appealed to the Supreme Court, reiterating his claims of error that were presented to the Court of Appeals. Cert was granted and a full court will sit and hear the arguments from both parties. The real issue here is the law behind patentability of life, and the Court really should revisit more than its Quanta decision.
Monsanto’s position that it has a right to sue farmers that plant Monsanto seed without first paying Monsanto’s patent licensing fees has its roots in the Diamond v. Chakrabarty. Essentially, that case held that “A live, human-made micro-organism is patentable subject matter” under the United States Patent laws.
The subject matter of the Chakrabarty case, a micro-organism that eats oil (and thus seriously limits the environmental effects of oil spills), may have been a novel, non-obvious, invention that helped out all of humanity and science, the ultimate objective of patented inventions. However, companies like Monsanto have used this piece of case law to justify patent applications for seeds that are DNA-modified with pesticides and growth hormones.
Patent-holders have the exclusive right to restrict the use of the patented design, invention, or discovery for 20 years from the time of the filing of the patent. This means that, because the seeds are “patentable” under Chakrabarty, Monsanto can sue anyone who uses the seeds and doesn’t pony up the dough, and can do so for a long time.
The problem is that now litigants like Bowman have to find other avenues to defeat an infringement claim other than the idea that a genetically-altered seed should not be patentable. That’s why Bowman’s argument doesn’t approach the patentability of a genetically altered seed and instead focuses on the extent of a subsequent use (specifically as it relates to regenerating products). If Bowman prevails and doesn’t touch the subject of Chakrabarty, it will mean that, under Federal Patent Law, life is patentable, but the life bore of patented life is not patentable. Seems ridiculous. And this ridiculousness i’m sure is exploited by Monsanto.
Besides the moral problem of multinational corporations suing small-town American farmers, there is a serious economic impact to the issues of patentability of genetically modified products. Monsanto, Tyson, and many other corporate food production suppliers and marketers are the major reason that the total indebtedness of produce farmers exceeds $200 billion.
Farms are broke. Our Supreme Court lets farmers be more burdened with debt for their dues for what used to be a naturally occurring process. Chakrabarty should be overturned. Monsanto should go back to selling pesticides that run off in the rain. Or design a safer method for administration of pesticides. Either way, Monsanto should get out of the business of owning a percentage of profit as a licensing interest in all future crops of the American farmer.