the ERL

May 13, 2013

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Monsanto on top of the world (Svalbard Seed Vault)

NEW YORK TIMES MAY 13, 2013 WASHINGTON — The Supreme Court ruled unanimously on Monday that farmers could not use Monsanto’s patented genetically altered soybeans to create new seeds without paying the company a fee.

The ruling has implications for many aspects of modern agriculture and for businesses based on vaccines, cell lines and software. But Justice Elena Kagan, writing for the court, emphasized that the justices intended the decision to be narrow.

“Our holding today is limited — addressing the situation before us, rather than every one involving a self-replicating product,” she wrote. “We recognize that such inventions are becoming ever more prevalent, complex, and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose.”

But Justice Kagan had little difficulty ruling that an Indiana farmer’s conduct had run afoul of the patent law.

Farmers who buy Monsanto’s patented seeds must generally sign a contract promising not to save seeds from the resulting crop, which means they must buy new seeds every year. The seeds are valuable because they are resistant to the herbicide Roundup, itself a Monsanto product.

But the Indiana farmer, Vernon Hugh Bowman, who had signed such contracts for his main crop, said he had discovered a loophole for a second, riskier crop later in the growing season.

For that second crop, he bought seeds from a grain elevator filled with a mix of seeds in the reasonable hope that many of them contained Monsanto’s patented Roundup Ready gene. Such seeds are typically sold for animal feed, food processing or industrial use. Mr. Bowman planted them and sprayed them with Roundup. Many of the plants survived, and he saved seeds for further plantings.

Justice Kagan suggested that this tactic was too clever by half.

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 Supreme Court agreed in Monday’s decision, Bowman v. Monsanto Co., No. 11-796.

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