Oct 22 2012

When is Patent Law like Environmental Law?

Published by at 1:35 pm under Land Use,Miscellaneous and tagged: , , , ,

Edge of a field of corn, via wikimedia

The answer: whenever Monsanto is involved. And now the company is heading to the Supreme Court.

Perhaps the most hated corporation in existence, Monsanto is a huge organization, best known for creating, selling, and, most importantly, patenting genetically engineered crops (GE crops) that are resistant to Monsanto’s brand of herbicide, Round-up. Commonly known as “Round-Up Ready” crops, Monsanto’s seeds include corn, alfalfa, and soybeans and are so widely used that pretty much everything we eat contains at least some GMO (Genetically Modified Organisms).

GE crops have several environmental implications. First, having crops which are resistant to toxic herbicides like Round-Up allow farmers to use more of them on their crops. This means that there’s more pesticides that can get swept up in stormwater runoff and end up in the water supply, causing havoc.

Second, because seeds are passed on very easily by pollinating animals, so-called “super weeds” are beginning to pop up unintentionally that are also resistant to herbicides. Stronger and more potent herbicides are needed in greater amounts in order to get rid of these, compounding the runoff problem and potentially removing a tool in the fight against invasive species. The same is happening with Monsanto’s line of pesticide resistant crops, where the very bugs the pesticide is targeting are becoming resistant as well (isn’t evolution wonderful?).

While these are very serious problems, the reason Monsanto is so reviled is more a result of the way it treats farmers. Because the genes themselves are patented, Monsanto is allowed to prosecute patent infringement rigorously and it does so to great effect.¬†Monsanto has also been accused of harassing and intimidating farmers into settling rather than pursuing their cases, which usually works because of the incredible resource disparity between local farmers and a huge conglomerate like Monsanto. Of the cases that have made it to court (11 out of 145 according to Monsanto’s website) every single one has been decided in Monsanto’s favor.

Now, however, one of these cases has made it into the Supreme Court. SCOTUS has grated cert in Bowman v. Monsanto¬†out of the Federal Circuit. Bowman found a way to save GE seeds without buying them directly from Monsanto and ostensibly without violating Monsanto’s licensing.

Some of the GE seeds were sold (legally) into the commodity seed market and mixed with other seeds. Bowman bought seeds from the commodity market, planted them, then sprayed them with Round-Up to find which ones survived. Then, free of the Monsanto usual licensing agreement forbidding seed saving, Bowman saved the Round-Up Ready seeds from the commodity crop for planting in the next season.

Monsanto sued Bowman, claiming that their patent had been infringed and the Federal Circuit agreed. This decision may be directly contradictory to previous SCOTUS precedent saying that patent holders cannot require the entire supply chain to license their patent. Should SCOTUS strike down the decision, Bowman may have just exposed a rather large chink in Monsanto’s previously impervious armor. However, a win in this case this shouldn’t stop us from having a serious discussion about whether it’s a good idea to allow genes to be patented and whether it’s sustainable to allow GE crops to become ubiquitous.

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