FOCUS | Supreme Court Sides With Monsanto in Major Patent Case

By Richard Wolf, USA Today

13 May 13

he Supreme Court usually isn't friendly toward questionable patents, but it came down overwhelmingly on the side of agribusiness giant Monsanto Monday in a case that's bound to resonate throughout the biotechnology industry.

The court ruled unanimously that an Indiana farmer violated Monsanto's patent on genetically modified soybeans when he culled some from a grain elevator and used them to replant his own crop in future years.

"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 ruled in a short 10-page opinion. "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."

Who it helps: Inventors and entrepreneurs who have patents on products that can be self-replicated, from computer software to cell lines. While Kagan's decision is limited to the Monsanto case, it bolsters the argument that self-replicating products can be protected from patent infringement even if their challengers go through third parties.

Who it hurts: Consumers paying high prices. The Center for Food Safety released a report in February that showed three corporations control more than half of the global commercial seed market. It found that from 1995-2011, the average cost to plant 1 acre of soybeans rose 325%.

Monsanto's soybeans represent the cream of the crop because they are resistant to the weed killer Roundup. Farmers must pay Monsanto's price to plant the beans themselves.

That's not what Indiana farmer Vernon Hugh Bowman did. After one year of going through Monsanto, he bought his second crop from a grain elevator. Then he used his own soybeans that resisted Roundup in future years -- in essence, the court said, making copies of a patented invention.

Bowman's attorney, Mark Walters, had argued that the Monsanto seeds were acquired innocently enough from the grain elevator, and that Bowman's little operation never would threaten the company's monopoly.

Two lower federal courts weren't impressed with Bowman's case, ruling in favor of Monsanto. And that argument carried little weight with the justices when the case was argued in February. They noted that Monsanto had spent hundreds of millions of dollars over more than a decade to perfect its soybeans -- something it would not have done if others could so easily replicate them.

Bowman contended the soybeans were "self-replicating," but Kagan said that "blame-the-bean defense" wasn't worthy.

"Bowman was not a passive observer of his soybeans' multiplication," she said. "Or, put another way, the seeds he purchased, miraculous though they might be in other respects, did not spontaneously create eight successive soybean crops.

"It was Bowman, and not the bean, who controlled the reproduction (unto the eighth generation) of Monsanto's patented invention," Kagan said.

Fordham University School of Law professor Mark Patterson noted the decision stops short of determining how self-reproducing inventions should be handled in all cases.

"Justice Kagan, in the last paragraph of the opinion, noted that 'such inventions are becoming ever more prevalent, complex, and diverse,'" Patterson said. "Either the court or Congress will have to address them again soon."