The giant American agrichemical and biotech seed company, Monsanto, will be the subject of arguments before the U.S. Supreme Court Tuesday. It's a case that asks: Who owns the offspring of a product that copies itself? The answer could affect the future of genetically modified organisms, as well as emerging software, medicine, and other new technologies.
Monsanto’s Roundup Ready soybeans are among the most popular crop seeds purchased by American farmers, because they make weed control easy. Spray a field with the company’s popular Roundup weed killer, and just about the only plants left standing are the soybeans, which have been genetically modified to resist the herbicide. More than 90 percent of the U.S. crop includes either this or a competing technology.
But they’re expensive. Indiana farmer Vernon Hugh Bowman thought he would save some money by buying soybeans from his local grain elevator that were destined for animal feed or food processing. That’s according to his attorney, Mark Walters.
"And he figured Monsanto can’t claim to own this grain that’s in the grain elevator because it’s just a mixture of everyone else’s seed. And it’s not really a good source of seed in the first place," said Walters.
But Bowman planted the seeds. They grew. And when he sprayed the plants with Roundup, most of them survived and produced a new crop of soybeans. He saved some of that crop and planted it the next year.
That’s not allowed, says Monsanto. Roundup Ready technology is protected by a patent. Though farmers have saved seed for generations, Monsanto requires them to sign an agreement saying they will not save its patented seeds from year to year. Monsanto says Bowman is making unauthorized copies of its seeds.
But Walters says what Bowman did is perfectly legal under longstanding patent law.
"It’s called patent exhaustion. When somebody claims that they have a patent on something, and you bought it in a sale that was authorized, then the patent rights go away," he said.
For example, when you buy a new phone, you can use it or sell it, however you want. The phone maker has no rights to it anymore.
Bowman argues the same applies to the soybeans in the grain elevator. Monsanto owned the original seed, but once the soybeans were harvested and sold to the elevator, they were fair game.
But others say it is not the same because phones do not make copies of themselves the way seeds do. That’s why patent protection needs to cover the next generation of seeds, too, said Monsanto spokesman Lee Quarles.
"These biotechnologies require hundreds of millions of dollars to develop but can be readily replicated millions of times because they consist of genetic or other easily copied material,” he said.
Other biotech companies outside agriculture are siding with Monsanto, said Cathy Enright with the Biotechnology Industry Organization.
“If you don’t maintain the rights, then there’s no return on the investment for the companies that are developing these products," she said. "And if there’s no return on the investment, why on Earth would they invest?”
If Monsanto loses the case, Enright said, not only would crop development suffer at a time when the world’s demand for food is growing, but so would innovation in vaccines, stem cell therapies and biofuel-producing algae, to name a few.
Any new technology that makes copies of itself could be affected, which is why software makers and other high-tech businesses also are backing Monsanto.
But George Kimbrell with the Center for Food Safety said patents on seeds have helped just a few companies, like Monsanto, concentrate control over the food supply.
“To have the privatization and the concentration of seeds the way we do now is only a few decades old. So this case is the current vehicle that could offer a way to renegotiate that social contract," said Kimbrell.
Kimbrell and others say loosening patent protection would push the balance of power away from the big corporations, and return to farmers a measure of control over one of their primary inputs - their seeds.
The Supreme Court will have the final say in a ruling expected later this year.