by Jeff Conant, for synbiowatch
Last week, the Supreme Court heard testimonies in the Bowman vs. Monsanto case, wherein the agribusiness giant is fighting an appeal by farmer Vernon Bowman, who the company claims infringed its patent rights by replanting seeds he purchased beyond the bounds of the company’s licensing agreement. The farmer’s claim is that seeds are seeds, designed by nature to reproduce, and that therefore farmers have the right to plant them as they always have; the company’s claim is that its patent on a particular technology embedded in the seed extends to future generations of that seed’s stock.
As the NY Times reports, “The question in the case, Bowman v. Monsanto Company, No. 11-796, was whether patent rights to seeds and other things that can replicate themselves extend beyond the first generation. The justices appeared alert to the consequences of their eventual ruling not only for Monsanto’s very lucrative soybean patents but also for modern agriculture generally and for areas as varied as vaccines, cell lines and software.”
Back in 2007, a federal judge in Indiana ordered Mr. Bowman to pay Monsanto more than $84,000. The United States Court of Appeals for the Federal Circuit, which specializes in patent cases, upheld that decision, saying that by planting the seeds Mr. Bowman had infringed Monsanto’s patents.
The rationale for infinite generational patent protection was given by Chief Justice Roberts in his opening question to Bowman’s lawyer: “Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?”
“Well, certainly a corporation like Monsanto wouldn’t,” writes Food First’s Eric Holt-Gimenez in the Huffington Post. Holt-Gimenez goes on to point out that, “Since the dawn of agriculture farmers have improved seeds even though ‘as soon as they sold the first one anybody could grow more and have as many of those seeds as they want.’ That is what gave the world the tremendous agro-biodiversity of cultivars that our survival as a species depends upon. Thousands of years of farmer’s selection, breeding and genetic improvement has been free to Monsanto. No matter. A farmer breaking the modern patent laws of today’s corporate food regime won’t get any love from the judges whose job it is to enforce the laws of the regime.”
Indeed, it is not only the Supreme Court and the world’s largest private producer of agrotoxic chemicals who are condemning the farmer — and by extension further attacking the right of all farmers to save seed, and further strengthening the case for patents on life. Synbiowatch has learned that the University of California and a host of other public and private universities filed an Amicus Brief in support of Monsanto.
The brief, filed by the Association of University Technology Managers, the Association of Public Land-Grant Universities, the Association of American Universities, the Regents of the University of California, and trustees from numerous other universities including Illinois, Florida, Duke, Emory, Kentucky, Kansas, Montana Stata, and Delaware, argues in favor of the Bay-Dohle Act, which essentially allows private entities to pursue patents — and the profit from those patents — using public funding. “By enabling research institutions to seek patent protection for federally funded inventions,” states UCB’s Amicus filing, “the Act has led to a substantial increase in public disclosure and availability of these inventions. Technology transfer licensing has also created jobs and positively impacted the domestic economy.”
Why would a public university like the University of California, whose mission is to serve the public good, go to such lengths to support a private corporation in its claims against a farmer? As the UC states in its brief, “Amici, amici’s members, or amici’s employers engage in and support scientific research, obtain patents on inventions arising from that research, license the technologies to private sector companies for commercialization and then use portions of licensing royalties to underwrite further academic research and education.”
As the Supreme Court’s blog points out, here, “In the end, it seems most unlikely the Court will rule against Monsanto. At the highest level, the correct answer almost has to be that Monsanto has some way to protect its investment in the technology. Although petitioner tries mightily to suggest that Monsanto could protect the value of its investment through contracts or other non-patent mechanisms, Monsanto capably demolishes that contention in its brief. It emphasizes, for example, the large volumes of its seed distributed by the United States in foreign aid programs in less developed countries: is it to be believed that Monsanto will obligate the United States to obligate all of the aid recipients to agree to contracts binding them (and purchasers of their harvest) to comply with Monsanto’s restrictions on seed use?”
“In sum,” the Court’s blog says, “it is surely not easy to predict the doctrinal path that the Court will follow. But by far the most likely outcome is one in which the Federal Circuit’s ruling in favor of Monsanto is affirmed.”
The fact that Monsanto is sueing a farmer for patent infringement is hardly news; the fact that a public university such as the UC, along with a host of other publicly funded instituions, are supporting the case is hardly surprising either — it is merely affirmation of who, or rather what, the Law is designed to serve.
But what is really significant here is that repercussions of this case will be felt for years to come, as synthetic biologists use federal dollars and public research grants to develop living organisms of all description, designed to reproduce ad infinitum, beyond any regulatory framework aside from the law of the jungle.
So when that genetically modified virus attacks you in a few years, as Pfizer’s GE virus attacked molecular biologist Becky McClain, don’t go crying to the Supreme Court. They just might slap you with a fine for violating intellectual property rights.