Industrial Ag wary as Monsanto heads to Supreme Court

Greenpeace activists hold placards during a demonstration at Monsanto company offices in Mexico City(Reuters) – A 75-year-old Indiana grain farmer will take on global seed giant Monsanto Co at the U.S. Supreme Court next week in a patent battle that could have ramifications for the biotechnology industry and possibly the future of food production.

The highest court in the United States will hear arguments on Tuesday in the dispute, which started when soybean farmer Vernon Bowman bought and planted a mix of unmarked grain typically used for animal feed. The plants that grew turned out to contain the popular herbicide-resistant genetic trait known as Roundup Ready that Monsanto guards closely with patents.

The St. Louis, Mo.-based biotech giant accused Bowman of infringing its patents by growing plants that contained its genetics. But Bowman, who grows wheat and corn along with soybeans on about 300 acres inherited from his father, argued that he used second-generation grain and not the original seeds covered by Monsanto’s patents.

A central issue for the court is the extent that a patent holder, or the developer of a genetically modified seed, can control its use through multiple generations of seed.

The Supreme Court’s decision to hear the dispute has sparked broad concerns in the biotech industry as a range of companies fear it will result in limits placed on their own patents of self-replicating technologies.

At the same time, many farmer groups and biotech crop critics hope the Supreme Court might curb what they say is a patent system that gives too much power to biotech seed companies like Monsanto.

“I think the case has enormous implications,” said Dermot Hayes, an Iowa State University agribusiness and economics professor who believes Monsanto should prevail. “If Monsanto were to lose, many companies would have a reduced incentive for research in an area where we really need it right now. The world needs more food.”

The court battle has ballooned into a show-down that merges contentious matters of patent law with an ongoing national debate about the merits and pitfalls of genetically altered crops and efforts to increase food production.

More than 50 organizations – from environmental groups to intellectual property experts – as well as the U.S. government, have filed legal briefs hoping to sway the high court.

Companies developing patented cell lines and tools of molecular biotechnology could lose their ability to capture the ongoing value of these technologies if the Supreme Court sides with Bowman, said Hans Sauer, deputy general counsel for the Biotechnology Industry Organization.

The case also is important to regenerative medicine that relies on stem cell technologies. A stem cell by definition is a cell that can self-replicate, thus the case may answer the question of whether a patentee can control progeny of a patented stem cell, according to Antoinette Konski, a partner with Foley & Lardner’s intellectual property practice group.

Monsanto, a $13 billion behemoth in agricultural seed and chemical sales, also sees the case as much bigger than itself.

“This case really centers on the question of twenty-first century technology such as what we bring in agriculture and other companies bring for say stem cell research or nanotechnology…. and how they’re going to be handled under principles of intellectual property law,” said Monsanto general counsel Dave Snively.

SELF-REPLICATING

Because seeds self-replicate, creating progeny when planted, they are unlike more traditional patented products. Using a computer or smartphone does not create more computers or phones. But using a seed can make new seeds.

For generations all around the world, farmers have practiced the art of saving seed, holding onto some of the grain they harvest each season to plant in a subsequent season. The advent of patented biotech seeds has changed that as Monsanto and rival seed developers barred farmers from seed saving, arguing that if farmers do not buy new seed each year the companies cannot recoup the millions they spend to develop the specialty seeds.

Transgenic crops, which splices genes from other species into plant DNA, have given farmers crops that resist insects and tolerate treatments of herbicide, making killing weeds easier for farmers. The majority of U.S. corn and soybean acres are now planted with patented biotech seeds.

The case before the Supreme Court traces its roots to 1999, when Bowman decided to plant a “second crop” of soybeans after he harvested winter wheat from the farmstead he runs near Sandborn, Indiana.

While he used Monsanto’s Roundup Ready engineered seeds for his main, or “first” crop, Bowman said he decided to use inexpensive commodity grain that he could purchase from a local grain elevator for his “second” planting of soybeans in late June. Yields are generally lower for late-planted soybeans because conditions tend to be more optimal in April and May.

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