The question in the case, Bowman v. Monsanto Company, No. 11-796, was whether patent rights to seeds and other things that can replicate themselves extend beyond the first generation. The justices appeared alert to the consequences of their eventual ruling not only for Monsanto’s very lucrative soybean patents but also for modern agriculture generally and for areas as varied as vaccines, cell lines and software.
A lawyer for Monsanto, Seth P. Waxman, a former United States solicitor general, was allowed to talk uninterrupted for long stretches, which is usually a sign of impending victory.
“Without the ability to limit reproduction of soybeans containing this patented trait,” he said, “Monsanto could not have commercialized its invention and never would have produced what is, by now, the most popular agricultural technology in America.”
“This is probably the most rapidly adopted technological advance in history,” Mr. Waxman said of his client’s product, a genetically altered soybean called Roundup Ready, which is resistant to the herbicide Roundup, also a Monsanto product. “The very first Roundup Ready soybean seed was only made in 1996. And it now is grown by more than 90 percent of the 275,000 soybean farms in the United States.”
Farmers who buy the seeds must generally sign a contract promising not to save seeds from the resulting crop, which means they must buy new seeds every year.
But the Indiana farmer, Vernon Hugh Bowman, who had signed such contracts for his main crop, thought he had discovered a loophole for a second, riskier crop later in the growing season: he would buy from a grain elevator filled with a mix of seeds in the reasonable hope that many of them contained the 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.
Mr. Bowman argued that a doctrine called patent exhaustion allowed him to do what he liked with products he had obtained legally. But lower courts ruled that Mr. Bowman’s conduct amounted to patent infringement.
At Tuesday’s argument, Mr. Bowman’s lawyer received a markedly more hostile reception than Mr. Waxman. He was peppered with skeptical questions from almost every justice.
“Why in the world,” Chief Justice John G. Roberts Jr. asked, “would anybody spend any money to try to improve the seed if as soon as they sold the first one anybody could grow more and have as many of those seeds as they want?”
The lawyer, Mark P. Walters, said that companies could rely on contracts rather than patent law to protect their inventions, an answer that did not seem to satisfy several of the justices.
“It seems to me that that answer is peculiarly insufficient in this kind of a case,” Justice Elena Kagan said, “because all that has to happen is that one seed escapes the web of these contracts, and that seed, because it can self-replicate in the way that it can, essentially makes all the contracts worthless.”
Mr. Walters said that it was Monsanto’s approach that was extreme.
“The reach of Monsanto’s theory,” Mr. Walters said, “is that once that seed is sold, even though title has passed to the farmer, and the farmer assumes all risks associated with farming, that they can still control the ownership of that seed, control how that seed is used.”
Justice Stephen G. Breyer said that there were lots of things Mr. Bowman could do with the seeds he had bought from the grain elevator.
“You can feed it to animals, you can feed it to your family, make tofu turkeys,” he said.
“But I’ll give you two that you can’t do,” he went on. “One, you can’t pick up those seeds that you’ve just bought and throw them in a child’s face. You can’t do that because there’s a law that says you can’t do it. Now, there’s another law that says you cannot make copies of a patented invention.”
Justice Sonia Sotomayor said the doctrine of patent exhaustion did not help Mr. Bowman.
“The exhaustion doctrine permits you to use the good that you buy,” she said. “It never permits you to make another item from that item you bought.”
Mr. Walters, responding to a series of questions in this vein, said that “we disagree that the activity of basic farming could be considered making the invention.”
Mr. Waxman countered that the upshot of Mr. Walters’s argument was that Monsanto’s patents would be rendered worthless.
“Having committed hundreds of millions of dollars in 13 years to develop this technology,” he said, the sale by Monsanto of a single seed “would have exhausted its rights in perpetuity.”
The federal government largely supported Monsanto. “The exhaustion doctrine has always been limited to the particular article that was sold, and we are talking about a different article here,” said a lawyer for the government, Melissa Arbus Sherry. “And it’s never extended to the making of a new article.”
Justice Breyer seemed in a particularly playful mood on Tuesday. At one point he alluded to a notorious line from a 1927 opinion by Justice Oliver Wendell Holmes Jr., in which Holmes sought to justify the forced sterilization of a woman with mental disabilities. (“Three generations of imbeciles are enough,” Justice Holmes wrote.)
“There are three generations of seeds,” Justice Breyer said, to knowing chuckles. “Maybe three generations of seeds is enough.” A version of this article appeared in print on February 20, 2013, on page B1 of the New York edition with the headline: Supreme Court Appears to Defend Patent on Soybean.
Of course one result was expected after reading yours .. lol, virtually all day i've been thinking ok, on the patent question i getcha on the cost to develop and the importance of the patent to recoup costs, ok .. then the question that wouldn't go away, how many seed generations would it be fair to consider before the patent was deemed exhausted? (gotta say this all is a bit tiring .. lol) .. surely sooner or later fair is fair? .. then .. voila! .. in the last sentence above Justice Breyer got there .. coooooooooool .. sooooooooooo? .. how many generations do you blame a parent for a child? .. how many generation does Monsanto get claim? .. even looked at net profits etc, then decided that was going nowhere .. it would be good to see SCOTUS say something about that ..
====== .. anyway off the patent bit .. i've read of Indian farmer suicides in India being blamed on Monsanto ..
Belen Fernandez
Belen Fernandez is the author of The Imperial Messenger: Thomas Friedman at Work, published by Verso. She is a contributing editor at Jacobin Magazine.
Dirty white gold
Monsanto's claim that it's a "sustainable agriculture company" doesn't hold water.
Last Modified: 08 Dec 2012 13:37
Many argue that Monsanto's contributions in India have led to a "suicide economy" [EPA]
The website of US-based biotech giant Monsanto .. http://www.monsanto.com/Pages/default.aspx .. boasts that the corporation qualifies as "a sustainable agriculture company".
Given Monsanto's legacy as a producer of the lethal defoliant Agent Orange during the Vietnam War, Southeast Asian agriculture would presumably beg to differ with this characterisation.
Sustainability is also not the first word that comes to mind when contemplating Monsanto's policy of sowing the earth with genetically modified seeds that destroy soil and are designed with nonrenewable traits so as to require constant repurchase as well as acquisition of a variety of other company products like fertilizers and pesticides.
Farmers' suicide spikes in India .. [embedded YT inserted] ..
In tragic irony, many kill themselves by imbibing pesticides intended for their crops.
As for Monsanto's shameless claim .. http://www.monsanto.ca/whoweare/Pages/default.aspx .. that one of its primary objectives is "to improve lives", we might similarly conclude that butchers aim to improve the lives of cows and pigs and that two plus two is 86.
Suicide economy
Writing in 2009, physicist and author Vandana Shiva outlined .. http://www.huffingtonpost.com/vandana-shiva/from-seeds-of-suicide-to_b_192419.html .. Monsanto's contributions to a "suicide economy" in India, such as an increase in the price per kilogram of cotton seeds from 7 to 17,000 rupees. Shiva lists additional complications:
"Indigenous cotton varieties can be intercropped with food crops. Bt-cotton can only be grown as a monoculture. Indigenous cotton is rain fed. Bt-cotton needs irrigation. Indigenous varieties are pest resistant. Bt-cotton, even though promoted as resistant to the bollworm, has created new pests, and to control these new pests, farmers are using 13 times more pesticides then they were using prior to introduction of Bt-cotton. And finally, Monsanto sells its GMO seeds on fraudulent claims of yields of 1500/kg/year when farmers harvest 300-400 kg/year on an average."
There are a couple of reasons why mass farmer suicides have not generated the international attention that should ostensibly accompany such a phenomenon. For one thing, the image of desperate peasants killing themselves by the hundreds of thousands does not mesh particularly well with the portrait of India fabricated by free market pundits .. http://www.versobooks.com/books/1024-the-imperial-messenger , who hallucinate rampant upward economic mobility among the country's citizens thanks to globalisation.
"The humanisation campaign consists not only of conveying the personal stories of Indian farming families but also pinpointing the direct link between those of us who buy certain clothes and those of us who perish in the clothes-making process."
According to filmmaker Leah Borromeo, director of the forthcoming Dirty White Gold .. http://vimeo.com/50050875 .. about cotton and fashion, the dearth of international concern over the issue is also a result of the fact that "people haven't made the connection between our consumer habits and the lives and deaths of farmers".
"I'm exploring science and the idea of open-sourcing technology to take power away from corporations and anyone who makes a killing out of suicides."
Borromeo's definition of ethics and sustainability - which includes providing living wages to farmers and factory workers and preventing the destruction of ecosystems - is far more persuasive than Monsanto's definition of sustainable agriculture.
Engineering humanity
The very practice of tinkering with the genetic makeup of seeds in ways detrimental to consumers and the environment alike underscores the total estrangement of Monsanto and similar outfits from life itself.
How, then, does one go about injecting humanity into a system that systematically expunges it?
As Borromeo has explained, one of her primary tasks in Dirty White Gold is to combat the dehumanisation of "the Other" - an age-old tradition that has in contemporary times handily justified civilian slaughter in Arab/Muslim lands and helped ensure that thousands upon thousands of dead Indian farmers remain nothing more than an emotionally neutral statistic.
The humanisation campaign consists not only of conveying the personal stories of Indian farming families but also pinpointing the direct link between those of us who buy certain clothes and those of us who perish in the clothes-making process.
"I wanted to take an approach that wasn't, to borrow a phrase from [filmmaker] Adam Curtis, 'oh-dearism', which is when people watch a documentary, see all the misery and say, 'Oh dear, isn't that awful?', and then do nothing. I wanted this film to be the antithesis of oh-dearism - for them to think, 'Isn't this awful... but here's what I can do about it, this is how we can change it'."
Borromeo's film constitutes a thoughtful and self-critical exploration of options for revising operating structures in the cotton and fashion industries via the elimination of corporate middlemen and promotion of direct trade. A vital antidote, no doubt, to the cheery optimism exuded by Monsanto as it poisons the earth and mankind.
Belen Fernandez is the author of The Imperial Messenger: Thomas Friedman at Work, released by Verso in 2011. She is a member of the Jacobin Magazine editorial board, and her articles have appeared in the London Review of Books blog, Al Akhbar English and many other publications. [links inside]
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.
====== .. Monsanto's defense to the suicide claim ..
Farmer Suicides in India – Is There a Connection with Bt Cotton?
If you search the Internet for Monsanto, you will likely come across claims that failure of our Bollgard® cotton seed products has caused many farmers in India to take their own lives. Not everything you see or read on the Internet is fact and this is a good example.
The reality is that that the tragic phenomena of farmer suicides in India began long before the introduction of Bollgard in 2002. Farmer suicide has numerous causes with most experts agreeing that indebtedness is one of the main factors. Farmers unable to repay loans and facing spiraling interest often see suicide as the only solution. .. more .. http://www.monsanto.com/newsviews/Pages/india-farmer-suicides.aspx
====== .. with Bill Moyers .. 24min video and full transcript ..
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