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Supreme Court ups biotech stakes

Published on October 12, 2012 3:01AM

Last changed on November 9, 2012 9:10AM

Speculation flies over justices' interest in case pitting Monsanto against grower


Capital Press

The outcome of a legal dispute over transgenic soybeans before the U.S. Supreme Court could upend the business model of biotech seed developers, legal experts say.

The nation's highest court recently agreed to review a lawsuit over patents for genetically engineered crops, which means a previous ruling favorable to Monsanto and other biotech developers could potentially be reversed.

"It could really be huge for patents on seeds," said Christopher Holman, a law professor specializing in biotechnology and intellectual property at the University of Missouri-Kansas City.

The lawsuit pits Monsanto against Vernon Bowman, an Indiana soybean grower accused of patent infringement for planting seeds he bought from a local grain elevator.

Planting saved seeds from a harvest of glyphosate-resistant "Roundup Ready" soybeans is prohibited by the company, but Bowman argues this restriction should not apply to such "commodity seeds."

The vast majority of soybeans planted in the region contain biotech traits, and Bowman admitted that by spraying the crop planted from commodity seeds with glyphosate, according to court documents.

A federal judge rejected Bowman's arguments, ordering him to pay more than $84,000 in damages to Monsanto, and the U.S. Court of Appeals for the Federal Circuit affirmed that ruling last year.

The federal government advised the Supreme Court that the ruling correctly interpreted patent law, so the high court's decision to review the dispute raised eyebrows in legal circles, said Harold Edgar, a law professor at Columbia Law School who studies patents and bioethics.

"I think most people were surprised the Supreme Court took it," he said.

The Supreme Court's decision to review the case implies that at least some of the nine justices aren't satisfied with the ruling against Bowman, since they could otherwise let the appellate decision stand without review, Holman said.

"They might think Monsanto is overreaching," he said.

The Supreme Court may see the case as an opportunity to set the appellate court straight, said Mark Janis, a law professor and director of the Center for Intellectual Property Research at Indiana University's Maurer School of Law.

"That would be the default motivation," he said.

Bowman's interpretation of patent law would have drastic effects on the biotech seed industry, as it would allow farmers to circumvent agreements not to save transgenic seeds, said Drew Kershen, a law professor specializing in agricultural biotechnology at the University of Oklahoma.

"That opens a huge hole because every farmer would simply go to the elevators to buy seed," he said. "It would basically destroy the patent."

The main issue in the Supreme Court case is likely to be "self-replicating technology," Kershen said.

Bowman argues that Monsanto's patent rights in biotech seed were "exhausted" after the soybeans were sold without restriction to the grain elevator.

He claims the appellate court erroneously carved out an exception to the exhaustion doctrine, which applies to other patented products, for self-replicating technologies.

"His argument is the elevator essentially breaks the chain and creates a new product," Kershen said.

Monsanto's position -- backed by the appellate court and the federal government -- is that Bowman violated its patent rights by basically manufacturing a duplicate copy of its product.

"By making these new seeds, he's infringing the patent," said Holman, explaining the biotech developer's view.

If Monsanto can't rely on patent law for biotech seeds, the company wouldn't be able to recoup the millions of dollars it spends on such traits, he said. In that situation, the firm may decide on a technological solution, like a genetic trait that renders crop seeds sterile.

The Supreme Court is being asked to decide how to interpret legal principles that don't square neatly with living organisms, Holman said. "Patent law is not used to products like these, that grow on their own."

It is always possible that the high court will not make a sweeping decision -- the justices could simply provide some more guidance on patent law and remand the case to the lower court, Kershen said.

"It might be they're taking it primarily for the purpose of clarification," he said.

It would be problematic if the Supreme Court "short-circuited" the discussion over saving of biotech seeds, as this is an issue that would better be decided by Congress, said Janis. "It really is a legislative debate."


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