After a preliminary Supreme Court hearing in Bowman v. Monsanto Company yesterday, the Washington Post reports that the justices may be preparing to once again uphold the right of corporations to patent a living thing and its offspring:
Questions from the justices during oral arguments indicated that they agreed with the contention of Monsanto and other companies that research and development would dry up if the companies’ patents were easily circumvented.
“Why in the world 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?” Chief Justice John G. Roberts Jr. asked.
After Indiana farmer Harry Bowman planted Monsanto’s genetically modified Roundup Ready bean among his feed soybeans, the bio-tech giant sued him in 2007 on the grounds of patent violation. Now, Mother Jones reports, the case had made its way to the Supreme Court, where the justices have so far taken Monsanto’s side that Bowman was manufacturing a patented invention.
Bowman’s lawyer, however is countering with “patent exhaustion”—in other words, that Monsanto’s patent on the seeds cannot determine how farmers use the next generation of sprouts. In fact, the court has never considered patent exhaustion in the context of self-replicating technologies. Bowman carefully exploited a seeming loophole in Monsanto's rigid protections on the use of its seeds. Grist reports:
There is one tiny crack in Monsanto’s legal fortress. The company allows farmers to sell saved seeds from harvests of Roundup Ready crops to local grain elevators…. The grain elevators mix the seeds up with other seeds from brand-name hybrids and resell them as generic seed packs, called “commodity seeds” in the trade, which are often used for late-season “second crop” planting.
This argument is unlikely to be upheld by a court with a history of defending Monsanto. But it may score a smaller victory against Monsanto by bringing into public scrutiny the ethics of owning not just seeds, but their offspring.
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Amien Essif is a regular contributor to Working In These Times and maintains a blog called The Gazine, which focuses on consumerism, gentrification, and technology with a Luddite bent. His work has also appeared on the Guardian and CounterPunch. You can find him using Twitter reluctantly: @AmienChicago
