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Supreme Court to Review Case Challenging Genetically-modified Seed Saving Prohibitions

Bloomington, IN – The U.S. Supreme Court is set to rule in a landmark case that may decide the future of genetically-modified (GM) seeds and numerous other technologies. Bowman v. Monsanto, 11-796 involves a farmer who bought and planted second-generation GM seeds without paying royalties to Monsanto.

The Court will be ruling on whether or not corporate agricultural giants like Monsanto can successfully sue farmers who reuse second generation seeds. At present, Monsanto’s patent provisions prohibit seed saving, and require that farmers buy new seeds for planting every single year. However, if the Supreme Court rules that seed patent protections are “exhausted” after their first generation of use, it may sound the end for the GMO industry’s ever tightening control over American agriculture.

The case centers on a technology that has helped make Monsanto the world’s largest seed company, with $13.5 billion in annual revenue, while provoking fights with opponents of genetically modified food and some farmers. Monsanto’s Roundup Ready seeds are engineered to be tolerant of herbicides. Last year, 94 percent of U.S. soybeans were engineered to tolerate herbicides such as Roundup.

Following a practice farmers have been using for generations, Vernon Hugh Bowman purchased the seeds from a grain elevator in good faith, recognizing that their parent seeds had already been legally purchased from Monsanto. The seeds were second generation Monsanto seeds, which means they were the product of Monsanto-patented soybean seeds for which usage fees had already been paid.

If the indefinite seed patent protections maintained by Monsanto are struck down, the biotechnology industry as we know it will likely collapse. The bulk of Monsanto’s business is supported by controlling the seed industry and blocking farmers from reusing its seeds. But since previous cases involving other “self-replicating technologies” have been struck down, the courts may well recognize the seed patent plan for what it is – patent fraud.

“If it’s overturned, it will have cataclysmic repercussions for the business model in the seed biotech industry,” said Chuck Benbrook, a research professor at the Washington State University Center for Sustaining Agriculture and Natural Resources. “It would basically end the agricultural biotech industry as we know it, certainly for soybeans.”

Bowman’s lawyers said in their appeal that the issue “affects every farmer in the country and the method of planting that farmers such as Mr. Bowman have used for generations.” They argued that the lower court ruling “serves to completely eliminate exhaustion as a viable defense to patent infringement claims” involving self-replicating technologies, including genetically modified seeds.

The Supreme Court took up the case against the advice of the Obama administration, which said the Federal Circuit reached the right conclusion in the case.

The case may undermine a legal doctrine the Federal Circuit has adopted to extend the rights of patent holders. Under the so-called conditional sale exemption, patent holders can enforce their rights even after making a sale of the covered product. The doctrine has given patent holders the power to enforce restrictions against downstream purchasers.

The case may affect patents on other cutting-edge technologies, including man-made cell lines, DNA molecules, nanotechnologies and organic computers, according to a court filing by the Obama administration.

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