Monsanto Likely to Score Supreme Court Win with Far-Reaching Benefits for Corporate Farming
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Justice Scalia did not seem to appreciate this argument, as he shot back with, “He can plant and harvest and eat or sell. He just can’t plant, harvest, and then replant.”
Another question before the court has to do with voluntary vs. involuntary patent infringement. In this case, Bowman bought soybeans at the elevator, planted them, and applied Roundup herbicide to kill any non-Roundup Ready plants. He was clearly hoping to sidestep Monsanto’s patent rights to its seeds. But what if a kid bought a few seeds to plant for a science project, and without his knowledge, they happened to be genetically engineered and patented? What if genetically engineered corn pollen blows onto an adjacent field and pollinates corn that a farmer saves for seed?
Justice Sotomayor asked this question, but never received a clear answer from Monsanto’s lawyer. Monsanto’s lawyer answered for soybeans – and soybeans only. Unlike corn or alfalfa, soybeans are self-pollinating. What’s more, they are heavy and won’t blow in the wind. But other plants’ pollen and seeds can and are carried by the wind. Answering the question using assumptions that apply only to soybeans would be a mistake.
The only two justices who seemed to express concern for the precedent that siding in Monsanto’s favor might set were Kagan and Kennedy. In Kagan’s case, she worried aloud about the ubiquity of Monsanto’s genetically engineered soybean seeds, which now account for some 90 percent of soybeans planted in the United States. She said, “And, you know, these Roundup seeds are everywhere, it seems to me… So it seems as though – like pretty much everybody is an infringer at this point, aren’t they?”
Justice Kennedy added that he worried about a case in which only a small percent of seeds at a grain elevator were patented. “You can’t see those,” he said, referring to a farmer's inability to distinguish between which seeds at the elevator are patented and which are not. “That seems to me a very extreme result…. You can’t sell them if they know they are going to be used for seeds, and you can’t use them for seeds even though there is only 1 percent of the seeds?”
The case, while it might be an easy win for Monsanto, will no doubt set some interesting and important precedents once it is decided. When do Monsanto’s rights over its patented genes cease (if ever) following the sale of its seeds? What is the difference, legally, between accidentally violating Monsanto’s patent rights and doing so on purpose? And how will a redefinition of patent exhaustion from this case change patent law for everything – not just seeds?