Curious case of Monsanto’s GMO seeds

Last month, the US Supreme Court issued its ruling in the Bowman Vs Monsanto case, siding with Monsanto and in a unanimous decision, ruled that the doctrine of patent exhaustion does not affect Monsanto’s right to restrict farmers from reproducing or making new copies of patented articles i.e. Monsanto’s roundup ready seed varieties. The victory however may be short-lived for as reported by Forbes here, illegal genetically modified wheat has been found in a farm in Oregon. A Kansas based farmers, possibly frustrated with the discovery of accidental contamination, has sued Monsanto claiming negligence on part of Monsanto in controlling its Roundup ready technology.

Facts of the Bowman Vs Monsanto: 

The exhaustion doctrine, also referred to as the first sale doctrine, is a common law patent doctrine that limits the extent to which patent holders can control an individual article of a patented product after an authorized sale. Under the doctrine, once an unrestricted, authorized sale of a patented article occurs, the patent holder’s exclusive rights to control the use and sale of that article are exhausted, and the purchaser is free to use or resell that article without further restraint from patent law.

Monsanto invented and patented the Roundup Ready technology which comprises of making genetic alteration to plant seeds which allows the resultant plants from the seed to survive exposure to the herbicide glyphosate. Monsanto sells soybean seeds comprising the roundup ready genetic alteration subject to a licensing agreement that permits farmers to plant the purchased seed in one, and only one, growing season. Growers may consume or sell the resulting crop from the seed, but may not save any of the harvested soybeans for replanting. Petitioner Bowman purchased Roundup Ready soybean seed for his first crop of each growing season from a company associated with Monsanto and followed the terms of the licensing agreement. But to reduce costs for his riskier late-season planting, Bowman purchased soybeans intended for consumption from a grain elevator; planted them, harvested the resulting soybeans that contained that trait; and saved some of these harvested seeds to use in his late-season planting the next season. After discovering this practice, Monsanto sued Bowman for patent infringement. Bowman raised the defense of patent exhaustion, which gives the purchaser of a patented article, or any subsequent owner, the right to use or resell that article. The District Court rejected Bow­man’s defense and the Federal Circuit affirmed.

The Courts while delivering judgement clarified the applicability of the doctrine in biotech related matters and held that Patent exhaustion does not permit a farmer to reproduce patent­ed seeds through planting and harvesting without the patent holder’s permission. Under the patent exhaustion doctrine, “the initial authorized sale of a patented article terminates all patent rights to that item,” (Quanta Computer, Inc. v. LG Electronics, Inc., 553 U. S. 617, 625), and confers on the purchaser, or any subsequent owner, “the right to use or sell” the thing as he sees fit, (United States v. Univis Lens Co., 316 U. S. 241, 249–250). However, the doctrine restricts the patent­ee’s rights only as to the “particular article” sold, and it leaves untouched the patentee’s ability to prevent a buyer from making new copies of the patented item. By planting and harvesting Monsanto’s patented seeds, Bowman made additional copies of Monsanto’s patented invention, and his conduct thus falls outside the protections of patent exhaustion. Were this otherwise, Monsanto’s patent would provide scant benefit. After Monsanto sold its first seed, other seed companies could produce the patented seed to compete with Monsanto, and farmers would need to buy seed only once. The court further explained that the “right to use” a patented article following an authorized sale, “does not include the right to construct an essentially new article on the template of the original, for the right to make the article remains with the patentee.” Accordingly, Bowman could not “‘replicate’ Monsanto’s patented technology by planting it in the ground to create newly infringing genetic material, seeds, and plants.

Coming back to the Wheat issue: Genetically modified wheat is not approved by US FDA and therefore is not available for commercial sale in US or for that reasons any other part of the world. Though Monsanto had tested the roundup ready wheat and applied for a US FDA approval, it did not actively pursue the application since US farmers were averse to embrace GMO wheat. Concerns partly were due to ban on exports of wheat from USA since a major chunk of wheat grown on US soils is exported to countries who are either averse or have zero tolerant policy towards GMO crops.

The contamination of Oregon farms with GM wheat may have resulted due to rogue seeds being carried by wind or any other natural phenomena, or may have resulted due to human error, as theorized by Forbes,but no knows for sure what exactly has happened. While it may seem unreasonable to hold Monsanto liable for a natural process of pollination and the natural process of self replication, which is difficult to control, it is the very same natural processes which have been at the center of controversy in the various cases, including Bowman Vs Monsanto, wherein Monsanto has tried to assert its patent rights and prevailed in a few.

With the above background in place, I am looking forward as to what the courts have to say in the matter.

Image from here

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