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Supreme Court to rule on gene-based seed patenting in Monsanto case

By David Schwartz
Published: February 20th, 2013

In a modern-day David vs. Goliath battle centered on genetically modified seeds, next Tuesday the Supreme Court will hear the case of one small Indiana farmer against the massive biotech company Monsanto to determine whether or not the seeds can be patented.

In 1999 farmer Vernon Hugh Bowman purchased a mixture of grain elevator soybeans to save money. Some were of the popular Monsanto variety called “Roundup Ready,” which are resistant to herbicide.

Farmers who plant seeds with Monsanto’s technology must sign an agreement not to save the seeds, meaning they must buy new seeds every year. The company saw Bowman’s move in planting the grain elevator seeds as unlawful replication of their patented seed.

“All through history we have always been allowed to go to an elevator and buy commodity grain and plant it,” says Bowman.

But in 2007 Monsanto successfully sued him for more than $84,000 in a district court of Indiana, a ruling that was later upheld by the Court of Appeals for the Federal Circuit. The court agreed with Monsanto that by planting the seeds Bowman had created newly infringing articles.

Bowman, however, argues that he was not making but merely using seeds — it just so happens that they replicate themselves. His lawyers are going with patent exhaustion, which implies the patent owner loses control over its patented product once sold. But Monsanto says exhaustion applies only to the particular item sold, not replicated versions of it. Moreover, the company argues that a win for Bowman could prove “devastating” for innovation and patent protection in the biotech industry, which also produces vaccines, DNA research and nanotechnology – all of which could theoretically be copied after purchasing if Monsanto loses the cases.

Universities as well as the biotech industry have filed amicus briefs in support of Monsanto’s position. “Investors are unlikely to make such investments” in seed and other biotech technologies, the company says, “if they cannot prevent purchasers of living organisms containing their invention from using them to produce unlimited copies.”

Source: The New York Times

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