Federal Circuit, Intellectual Property, Patents, SCOTUS, Supreme Court, Technology

Monsanto Tells Supreme Court The True Value Of A Hill Of Beans

When Rick told Ilsa that the problems of three little people don’t amount to a hill of beans in this crazy world, he was right, because a hill of beans is worth a whole hell of a lot thanks to Monsanto.

Today, the Supreme Court will hear argument in Bowman v. Monsanto Co., an appeal from the Federal Circuit regarding the extent of Monsanto’s rights in patented, genetically modified soybean seeds. In addition to the obvious stakes for the agricultural sector, the decision could impact the entire biotechnology industry, as well as computer software and nanotechnology. I mean, I want to know who holds the patent when the grey goo overruns the planet!

So, who are the players and why do they care?

Vernon Hugh Bowman: The 75-year-old Indiana farmer sued by Monsanto. He’s so out of central casting he could have starred in The Straight Story. Monsanto’s “Roundup Ready” soybeans are genetically modified to survive when farmers spray them with Monsanto’s weed-killing “Roundup,” which is basically a chemical that would give wedgies to Agent Orange. Roundup Ready is a technological wonder, but it’s still a seed, meaning it grows up and has little baby seeds. Like a very meta-“farmer’s daughter” joke, Monsanto says its clients can do whatever they want with the purchased seeds but must never touch their progeny, and farmers must sign agreements to that effect. Farmer Bowman didn’t harvest seeds from his Roundup Ready crops, but bought a bunch of secondhand seeds intended for animal feed and planted those.

Instead of a beanstalk to the land of giants, because of the dominance of Roundup Ready soybeans over the entire market, the seed cocktail that Bowman purchased was enough to give him a cheap Roundup Ready crop. He argues that he did nothing to violate his contract and that Monsanto’s patent rights exhausted once the seeds were sold to the grain elevator to be converted into animal feed.

Farmer Bowman also doesn’t own a computer and did much of the legal research himself on a library computer.

Monsanto also thinks he was stealing their Lexis password.

Monsanto: Monsanto is so reviled that they’ll still be hated 1,000 years from now. That said, they make a good product and earn the exorbitant price they exact. Monsanto is concerned that they cannot recoup the massive investment they’ve sunk developing this seed if farmers can go buy second-generation seeds without paying their tribute to the all-mighty Monsanto. The lower courts have agreed with Monsanto that it holds a patent in future generations of the self-replicating intellectual property, meaning secondhand seeds are legally worse than secondhand smoke. Go America!

This gets a little scary when applied to genetically modified human genes (that could, for example, make someone cancer-resistant or capable of shooting lasers from their hands). Will each subsequent generation owe a biotech company for the right to pass on their inherited traits? That’s a tad disturbing. Monsanto: Making the Morning After That Much More Awkward.

While farmers may sympathize with Bowman, they probably should be careful what they wish for, because if Monsanto were to lose it could always bust out its most infamous, hitherto withheld, technology: the Terminator. By genetically modifying all their seeds to produce sterile second-generation seeds, this case would become moot with Monsanto able to place farmers in perpetual dependence.

The United States: Business-hating, big government Obama is obviously backing Monsanto’s claim. The government is concerned that a decision against Monsanto’s patent rights would throw the entire biotech industry asunder. As an alternative, the government argues that Congress is the appropriate actor to consider modifying patent laws. It’s unclear if Obama is being tongue-in-cheek here and using “congressional action” as a stand-in for “we don’t want any changes to patent laws ever.”

Industry: A number of industry and research institutions that function as receptacles for industry funds argue that Monsanto needs patent protection to spur research. Pretty standard stuff. But the computer software industry is uniquely middling in its argument. As the New York Times put it:

BSA/The Software Alliance, which represents companies like Apple and Microsoft, said in a brief that a decision against Monsanto might “facilitate software piracy on a broad scale” because software can be easily replicated. But it also said that a decision that goes too far the other way could make nuisance software patent infringement lawsuits too easy to file.

Yeah, an industry founded on ripping off competitors through reverse engineering certainly doesn’t want Monsanto’s victory to be too extreme.

Look for the Court to ask some tough questions about the danger of patenting life in perpetuity, but in the end the Supreme Court is going to have to side with Monsanto. I mean, Justice Ginsburg can’t rule against biotech… it’s the only thing keeping her alive.

Did I just make that joke? Soy vey!

Argument Preview: Stakes Are High In Dispute Over Rights To Genetically Modified Seeds [SCOTUSBlog]
Farmer’s Supreme Court Challenge Puts Monsanto Patents at Risk [New York Times]

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