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Supreme Court Skeptical Of Patent Challenge

Biotech: Justices seem receptive to protecting company’s GM seeds

by Glenn Hess
February 25, 2013 | A version of this story appeared in Volume 91, Issue 8

Credit: Newscom
Bowman speaks to reporters outside the Supreme Court on Feb. 19.
Indiana grain farmer Vernon Hugh Bowman speaks to reporters outside of the US Supreme Court on February 19, 2013. At left if Bowman's lawyer Mark Walters.
Credit: Newscom
Bowman speaks to reporters outside the Supreme Court on Feb. 19.

Supreme Court justices were skeptical last week of an Indiana farmer’s claim that the soybean seeds he purchased from a grain elevator are not covered by Monsanto’s patents, even though most of the seeds were genetically altered by the company.

The high court heard arguments on Feb. 19 in the conflict between 75-year-old grain farmer Vernon H. Bowman and agribusiness giant Monsanto. Farmers who purchase Monsanto’s Roundup Ready seeds, which are genetically modified to withstand Roundup herbicide, must agree that they will only harvest the resulting crop and not use any of its seeds for replanting. Bowman bought a random mix of seeds from the grain elevator, took some resulting plants that appeared resistant to Roundup, and saved their seeds for reuse. In 2007, Monsanto sued him.

Bowman contends that Monsanto’s patent rights were “exhausted” after the original seeds were used, so the company cannot restrict the use of the second-generation seeds. But several justices appeared to reject this argument, saying that Bowman could use the seed he had purchased for other purposes but could not harvest the crop from the next generation of seeds.

“There are certain things that the law prohibits,” said Justice Stephen Breyer. “What it prohibits here is making a copy of the patented invention. And that is what he did.” Justice Sonia Sotomayor added that patent law “doesn’t permit you to make another item. You can use the seed. But you can’t use its progeny.”

Sarah A. Kagan, a lawyer at the intellectual property firm Banner & Witcoff, says a ruling for Bowman could undermine patent protections for other self-replicating products, such as cell lines and transgenic animals. “If Bowman got his way, the inventors of such things would need to recoup all their costs up front in their first sale, rather than over time,” she says. “The first purchaser could reproduce the invention and sell it to others, and cut the inventors out of the loop entirely.”

A ruling is expected by the end of June.



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