View from the Levee: Monsanto’s Seeds

[imgbelt img=bowman1.jpg]A 75-year-old bachelor farmer takes on agriculture giant Monsanto in the Supreme Court. From the justices’ questions at oral arguments, it sounds like the Supremes want to protect monopolies, not competition.

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[imgcontainer left][img:walters.JPG] [source]Photo by Reuters

Mark Walters, left, Bowman’s attorney, talks to the press after the hearing. The justices stopped him 98 words into his oral argument.

Other justices—Kennedy, Sotomayer, Scalia, Breyer, Ginsburg and Kagan—all caught the Chief’s line of questioning and, soon, they were too were pounding Walters. Their questions came so fast and so relentlessly that his key legal point, patent exhaustion, soon sounded like a clever conceit.

It wasn’t.

The argument Walters was quickly failing to make might have been novel but it wasn’t so off-the-wall that the Supreme Court was willing to let two lower courts rulings on it—both against his client, Bowman—stand without review.

These big hitters wanted a whack at it, too, because today’s fast-expanding universe of technology was quickly outpacing yesterday’s patent laws. Clarification was needed.

The key question was, Did 120-year-old patent law and the intellectual property rights it bestowed on inventors cover subsequent generations of the technology if it replicated like, say, vaccines, software and seeds?

Bowman, through attorney Walters, believed the old laws—under current application—did not offer protection. One-and-done, was their argument.

Monsanto, whose seed patents give the St. Louis-based firm a virtual grip on key food and fiber crops from Indiana to India, thought otherwise.

Subsequent generations of the patented seed, its attorney argued, carry the very item first patented, the germplasm that makes the crop “Roundup Ready.” As such and by extension any—every—generation thereafter would be covered by the initial patent.

The Monsanto view, however, carries a big problem: For that construction to be correct, courts need to “expand” yesterday’s old laws to fit today’s new times. Two federal courts, in Indiana and the Federal District in Washington, D.C., have done just that.

But it’s just not patent expansion, explained Peter Carstensen, a law professor at the University of Wisconsin and co-author of a “friend of the court” brief that favored Bowman’s view; it’s also antitrust issues.

“Patent law and antitrust law pose an inherent tension,” Carstensen’s brief explained. “One facilitates monopoly and limits competition and the other facilitates competition and limits monopoly.”

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